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): February 14, 2025
Arogo
Capital Acquisition Corp.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
001-41179 |
|
87-1118179 |
|
(State or other jurisdiction of
incorporation or organization) |
|
(Commission File Number) |
|
(I.R.S. Employer
Identification Number) |
848 Brickell Avenue, Penthouse 5, Miami, FL 33131
(Address of principal executive offices, including
zip code)
(786) 442-1482
(Registrant’s telephone number, including
area code)
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
| ☒ |
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)) |
Securities registered pursuant to Section 12(b)
of the Act:
| Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
| Units, each consisting of one share of Class A Common Stock, par value $0.0001 per share, and one Redeemable Warrant |
|
AOGOU |
|
OTC Markets |
| Class A Common Stock, $0.0001 par value per share |
|
AOGO |
|
OTC Markets |
| Redeemable Warrants, each warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share |
|
AOGOW |
|
OTC Markets |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
Emerging growth company ☒
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.
Business Combination
Agreement
This section describes
the material provisions of the Business Combination Agreement (as defined below) but does not purport to describe all of the terms thereof.
Arogo’s stockholders, warrant holders and other interested parties are urged to read such agreement in its entirety. The following
summary is qualified in its entirety by reference to the complete text of the Business Combination Agreement, a copy of which is attached
hereto as Exhibit 2.1. Unless otherwise defined herein, the capitalized terms used below are defined in the Business Combination Agreement.
General Description
of the Business Combination Agreement
On February 14, 2025, Arogo Capital Acquisition
Corp., a Delaware corporation (together with its successors, “Purchaser” or “Arogo”), entered into
an agreement and plan of merger (the “Business Combination Agreement”) with BTL Merger (Cayman) Ltd., a to-be-formed
Cayman Islands exempted company, and a wholly-owned subsidiary of the Company upon execution of a joinder thereto (“Merger Sub”),
Singto, LLC, a Delaware limited liability company in the capacity as the representative from and after the effective time of the business
combination (the “Effective Time”) for the stockholders of Purchaser (other than the Company Security Holders (as defined
in the Business Combination Agreement) as of immediately prior to the Effective Time and their successors and assignees) in accordance
with the terms and conditions of the Business Combination Agreement (the “Purchaser Representative”), BTL Holdings
(Cayman) Limited, upon execution of a joinder agreement to become party to the Business Combination Agreement (a “Joinder”),
a to-be-formed Cayman Islands exempted company (“Pubco”), Mr. Nusttanakit Sasianon and Mr Sawin Laosethakul, jointly
and solely in their capacity as the representatives from and after the Effective Time for the Company Shareholders (as defined below)
as of immediately prior to the Effective Time in accordance with the terms and conditions of the Business Combination Agreement (the “Seller
Representative”), and Bangkok Tellink Co., Ltd., a Thailand-based registered company (the “Company”). The
Purchaser, Merger Sub, Purchaser Representative, the Seller Representative and the Company are sometimes referred to herein individually
as a “Party” and, collectively, as the “Parties.”
The Merger and
Share Exchange
Pursuant to the Business
Combination Agreement, subject to the terms and conditions set forth therein, the Parties intend to effect a business combination transaction
whereby (a) Purchaser will merge with and into Merger Sub, with Purchaser continuing as the surviving entity or, alternatively, Purchaser
will merge with and into Pubco (the “Merger”), as a result of which, (i) Purchaser shall become a wholly-owned subsidiary
of Pubco, and (ii) each issued and outstanding security of Purchaser immediately prior to the Effective Time shall no longer be outstanding
and shall automatically be cancelled, in exchange for the right of the holder thereof to receive a substantially equivalent security of
Pubco, and (b) Pubco shall acquire all of the issued and outstanding ordinary shares of the Company from the Sellers in exchange for ordinary
shares of Pubco (the “Share Exchange”, and collectively with the Merger and the other transactions contemplated by
the Business Combination Agreement and the Ancillary Documents, the “Transactions”).
At the Effective Time, immediately following the
consummation of the Share Exchange, (a) Purchaser and Merger Sub shall consummate the Merger, pursuant to which Merger Sub shall be merged
with and into Purchaser, following which Merger Sub shall be removed from the register of companies in the Cayman Islands and be dissolved
and the separate corporate existence of Merger Sub shall cease and Purchaser shall continue as the surviving company. Purchaser, as the
surviving company after the Merger, is hereinafter sometimes referred to as the “Surviving Company” (provided, that
references to Purchaser for periods after the Effective Time shall include the Surviving Company) or (b) Purchaser and Pubco shall consummate
the Merger, pursuant to which Purchaser shall be merged with and into Pubco and shall become a wholly-owned subsidiary of Pubco. The Merger
shall have the effects specified in the Companies Act (Revised) of the Cayman Islands (the “Cayman Act”).
On
the Closing Date, Merger Sub or, alternatively, Pubco and Purchaser shall execute a plan of merger in form and substance reasonably acceptable
to Purchaser, Pubco, the Sellers and the Company (the “Plan of Merger”), and the Parties shall file the Plan of Merger
and such other documents as required by the Cayman Act with the Registrar of Companies of the Cayman Islands as provided in Section 233
of the Cayman Act and Purchaser's and Merger Sub's or, alternatively, Pubco’s Organizational Documents. The Merger shall become
effective at the Effective Time, which is on the Closing Date when the Plan of Merger is registered by the Registrar of Companies of the
Cayman Islands or as set forth in the Business Combination Agreement.
Effect of the Merger
At the Effective Time,
by virtue of, or in connection with, the Merger and without any action on the part of any Party or the holders of any capital shares of
Purchaser, Pubco or Merger Sub: (a) all of the Merger Sub Ordinary Shares issued and outstanding immediately prior to the Effective Time
shall be converted into an equal number of ordinary shares of the Surviving Company. In connection with the Merger, at the Effective Time
(but for the avoidance of doubt following the conversion of Purchaser Ordinary Shares into Pubco Ordinary Shares pursuant to section 1.7(b)
of the Business Combination Agreement), the Company shall surrender for no consideration all of the shares of Pubco issued and outstanding
immediately prior to the Effective Time which were held by the Company, and such Pubco Ordinary Shares shall be canceled without any conversion
thereof or payment therefor.
Representations
and Warranties
The Business Combination
Agreement contains a number of representations and warranties made by Arogo, the Company and Pubco as of the date of such agreement or
other specific dates solely for the benefit of certain of the parties to the Business Combination Agreement, which in certain cases are
subject to specified exceptions and materiality, Material Adverse Effect, knowledge and other qualifications contained in the Business
Combination Agreement or in information provided pursuant to certain disclosure schedules to the Business Combination Agreement. “Material
Adverse Effect” as used in the Business Combination Agreement means with respect to any specified person or entity, any fact,
event, occurrence, change or effect that has had or would reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the business, assets, liabilities, results of operations, prospects or condition (financial or otherwise) of such person
or entity and its subsidiaries, taken as a whole, or the ability of such person or entity or any of its subsidiaries on a timely basis
to consummate the transactions contemplated by the Business Combination Agreement or the ancillary documents thereto, subject to certain
customary exceptions.
In the Business Combination
Agreement, Arogo made certain customary representations and warranties to the Company, including among others, related to the following:
(1) corporate matters, including due organization, existence and good standing; (2) authority and binding effect relating to execution
and delivery of the Business Combination Agreement and other ancillary documents; (3) governmental approvals; (4) non-contravention; (5)
capitalization; (6) SEC filings and Arogo financial statements; (7) absence of certain changes; (8) compliance with laws; (9) actions,
orders and permits; (10) tax returns; (11) employees and employee benefit plans; (12) properties; (13) material contracts; (14) transactions
with affiliates; (15) Merger Sub Activities (16) Investment Company Act of 1940, as amended (the “Investment Company Act”);
(17) finders and brokers; (18) ownership of stockholder merger consideration (19) certain business practices; (20) insurance; (21) Purchaser
trust account (22) independent investigation.
Additionally, Pubco made
certain customary representations and warranties related to the following: (1) corporate matters, including due organization, existence
and good standing; (2) authority and binding effect relating to execution and delivery of the Business Combination Agreement and other
ancillary documents; (3) governmental approvals; (4) non-contravention; (5) capitalization; (6) ownership of the exchange shares; (7)
Pubco and Merger Sub activities; (8) finders and brokers; (9) Investment Company Act; (10) information supplied; (11) independent investigation;
and (12) no other representation.
In the Business Combination
Agreement, the Company made certain customary representations and warranties to Arogo and Pubco, including among others, related to the
following: (1) corporate matters, including due organization, existence and good standing; (2) authority and binding effect relative to
execution and delivery of the Business Combination Agreement and other ancillary documents; (3) capitalization; (4) subsidiaries; (5)
governmental approvals; (6) non-contravention; (7) the Company financial statements; (8) absence of certain changes; (9) compliance with
laws; (10) orders and permits; (11) litigation; (12) material contracts; (13) intellectual property; (14) taxes and returns; (15) real
property; (16) personal property; (17) title to and sufficiency of assets; (18) employee matters; (19) benefit plans; (20) environmental
matters; (21) transactions with related persons; (22) insurance; (23) books and records; (24) top customers and suppliers; (25) certain
business practices; (26) compliance with privacy laws, privacy policies and certain contracts; (27) Investment Company Act; (28) finders
and brokers; (29) independent investigation (30) information supplied; (31) disclosure.
Covenants of the
Parties
Each Party agreed in
the Business Combination Agreement to use its commercially reasonable efforts to effect the Closing. The Business Combination Agreement
also contains certain customary covenants by each of the parties during the period between the signing of the Business Combination Agreement
and the earlier of the Closing or the termination of the Business Combination Agreement in accordance with its terms (the “Interim
Period”), including in pertinent part the covenants regarding: (1) access and information; (2) conduct of business of the Company;
(3) conduct of business of Arogo; (4) the Company’s obligation to deliver interim financial statements; (5) Arogo’s public
filing and Arogo’s stockholder approval; (6) no solicitation; (7) trading; (8) notifications of certain matters; (9) efforts to
consummate the closing and obtain third party and regulatory approvals; (10) tax matters (11) further assurances; (12) filing of a Registration
Statement (as defined below); (13) company shareholder approval; (14) public announcements; (15) confidentiality; (16) documents and information;
(17) post-closing board of directors and executive officers; (18) indemnification of directors and officers after the Closing and tail
insurance; (19) use of trust account proceeds after the Closing; (20) PIPE investment, if sought; and (21) incentive equity plan.
The parties also agreed
to take all necessary actions to cause Pubco’s board of directors immediately after the Closing to consist of a board of five directors,
a majority of which will be independent, whereby: one (1) person designated by the Company and Purchaser prior to the Closing that shall
qualify as an independent director under Nasdaq rules (the “Purchaser Director”), one (1) person designated by the
Sponsor prior to the Closing that shall qualify as an independent director under Nasdaq rules (the “Sponsor Director”),
and three (3) directors designated by the Company, at least one (1) of whom shall be required to qualify as an independent director under
Nasdaq rules. At or prior to the Closing, Pubco will provide each Arogo director with a customary director indemnification agreement,
in form and substance reasonably acceptable to the Company.
Arogo and Pubco also
agreed to prepare, and Pubco shall file with the Securities and Exchange Commission (“SEC”), a registration statement
on Form F-4 (as amended, the “Registration Statement”) in connection with the registration under the Securities Act
of 1933, as amended (the “Securities Act”) of the issuance of securities of Pubco to the holders of Arogo securities
and containing a proxy statement/prospectus for the purpose of soliciting proxies from the shareholders of Arogo for the matters relating
to the Transactions to be acted on at the extraordinary general meeting of the shareholders of Arogo and providing such shareholders with
an opportunity to participate in the redemption by Arogo of its public shareholders in connection with Arogo’s initial business
combination, as required by its amended and restated memorandum and articles of association (the “Redemption”).
Survival and Indemnification
Representations and warranties of the Company
and the Purchaser contained in the Business Combination Agreement or in any certificate or instrument delivered by or on behalf of the
Company or the Purchaser pursuant to the Business Combination Agreement shall not survive the Closing, and from and after the Closing,
the Company and the Purchaser and their respective Representatives shall not have any further obligations, nor shall any claim be asserted
or action be brought against the Company or the Purchaser or their respective Representatives with respect thereto. The covenants and
agreements made by the Company and the Purchaser in the Business Combination Agreement or in any certificate or instrument delivered pursuant
to the Business Combination Agreement, including any rights arising out of any breach of such covenants or agreements, shall not survive
the Closing, except for those covenants and agreements contained herein and therein that by their terms apply or are to be performed in
whole or in part after the Closing (which such covenants shall survive the Closing and continue until fully performed in accordance with
their terms.
Any rights to exculpation, indemnification and
advancement of expenses existing in favor of the current or former directors and officers of Arogo, the Company, Pubco, Merger Sub and
each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust,
pension or other employee benefit plan or enterprise at the request of Arogo, the Company, Pubco, and Merger Sub (the “D&O
Indemnified Persons”) as provided in their respective organizational documents or under any indemnification, employment or other
similar agreements between any D&O Indemnified Person and Arogo, the Company, Pubco, and Merger Sub, in effect on the date of the
Business Combination Agreement, shall survive the Closing and continue in full force and effect in accordance with their respective terms
to the extent permitted by applicable Law. For a period of six (6) years after the Effective Time, Pubco shall cause the Organizational
Documents of Pubco, Arogo and the Company to contain provisions no less favorable with respect to exculpation and indemnification of and
advancement of expenses to D&O Indemnified Persons than are set forth as of the date of the Business Combination Agreement in the
organizational documents of Arogo, the Company, Pubco to the extent permitted by applicable law, which provisions shall survive the Closing
and are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Persons and their respective heirs
and representatives
In addition, Arogo shall
be permitted prior to the Closing Date to obtain and fully pay the premium for a “tail” insurance policy that provides coverage
for up to a six-year period from and after the Closing Date for events occurring prior to the Closing Date (the “D&O Tail
Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than Arogo’s existing
policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage. If obtained, Arogo and Pubco shall
maintain the D&O Tail Insurance in full force and effect, and continue to honor the obligations thereunder, and Arogo and Pubco shall
timely pay or cause to be paid all premiums with respect to the D&O Tail Insurance.
Conditions to Closing
The obligations of each
Party to consummate the Transactions shall be subject to the satisfaction or written waiver (where permissible) by the Company and Arogo
of the following conditions: (i) the approval of the Business Combination Agreement and the transactions contemplated thereby, the adoption
of Pubco’s amended and restated the memorandum and articles of association, the adoption and approval of a new equity incentive
plan for Pubco, the appointment of the members of the Pubco’s board of directors after the Closing and other related matters by
the requisite vote of Arogo’s shareholders; (ii) receipt by the Company of all consents required and regulatory approvals to be
obtained from any regulatory authority or third person in order to consummate the Transactions (the “Required Consents”);
(iii) expiration of any waiting period under applicable antitrust laws; (iv) no law or order preventing or prohibiting the Transactions;
(v) no pending litigation to enjoin or restrict the consummation of the Closing; (vi) members of the post-closing Pubco board shall have
been elected or appointed as of the Closing Date; (vii) the effectiveness of the Registration Statement; and (viii) Nasdaq listing of
Pubco shares.
In addition, unless waived
by the Company, the obligations of the Company to consummate the Transactions are subject to the satisfaction of the following conditions,
in addition to customary certificates and other closing deliveries: (i) the representations and warranties of Arogo being true and correct
as of the date of the Business Combination Agreement and as of the Closing Date (subject to Material Adverse Effect); (ii) Arogo having
performed in all material respects its obligations and complied in all material respects with its covenants and agreements under the Business
Combination Agreement required to be performed or complied with by it on or prior the Closing Date; (iii) absence of any Material Adverse
Effect with respect to Arogo since the date of the Business Combination Agreement which is continuing and uncured; and (iv) delivery of
closing deliverables documents are in full force and effect such as consents and good standing certificate.
Termination
The Business Combination
Agreement may be terminated at any time prior to the Closing by either Arogo or the Company if the Closing has not occurred on or prior
to December 31, 2025 (the “Outside Date”); provided that if Arogo, at its election with the consent of the Company,
receives shareholder approval for a charter amendment to extend the term it has to consummate a business combination (“Charter
Extension”) for an additional period equal to the shorter of (i) three (3) additional months, and (ii) the period ending on
the last date for Arogo to consummate its Business Combination pursuant to such subsequent Charter Extension. A party is not entitled
to terminate the Business Combination Agreement if the failure of the Closing to occur by such date was caused by or the result of a breach
of the Business Combination Agreement by such Party.
The Business Combination
Agreement may also be terminated under certain other customary and limited circumstances prior the Closing, including, among other reasons:
(i) by mutual written consent of Arogo and the Company; (ii) by either Arogo or the Company if a governmental authority of competent jurisdiction
has issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Transactions, and such order
or other action has become final and non-appealable; (iii) by the Company for a material uncured breach of the Business Combination Agreement
by Arogo if the breach would result in the failure of the related Closing condition; (iv) by Arogo for the material uncured breach of
the Business Combination Agreement by the Company, Pubco, Merger Sub, if the breach would result in the failure of the related Closing
condition; (v) by Arogo if there has been a Material Adverse Effect with respect to the Company taken as a whole since the date of the
Business Combination Agreement, which is uncured and continuing; or (vi) by either Arogo or the Company if Arogo holds an extraordinary
general meeting of its stockholders to approve the Business Combination Agreement and the Transactions and such approval is not obtained.
If the Business Combination
Agreement is terminated, all obligations of the parties under the Business Combination Agreement (except for certain obligations related
to public announcements, confidentiality, fees and expenses, trust account waiver, termination and general provisions) will terminate,
and no party to the Business Combination Agreement will have any further liability to any other party thereto except for liability for
certain fraud claims or for willful breach of the Business Combination Agreement prior to the termination.
Trust Account Waiver
and Releases
The Company, Pubco, Merger
Sub have agreed that they and their affiliates will not have any right, title, interest or claim of any kind in or to any monies in Arogo’s
trust account held for its public shareholders, and have agreed not to, and waived any right to, make any claim against the trust account
(including any distributions therefrom directly or indirectly to Arogo’s shareholders).
Governing Law
The Business Combination
Agreement is governed by Delaware law. Any state or federal court located in Delaware will have exclusive jurisdiction.
A copy of the Business
Combination Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference, and the foregoing
description of the Business Combination Agreement is qualified in its entirety by reference thereto.
The Business Combination
Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of such agreement
or other specific dates. The assertions embodied in those representations, warranties, covenants and agreements were made for purposes
of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection
with negotiating such agreement. The Business Combination Agreement has been filed to provide investors with information regarding its
terms, but it is not intended to provide any other factual information about Arogo, the Company or any other party to the Business Combination
Agreement. In particular, the representations and warranties, covenants and agreements contained in the Business Combination Agreement,
which were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to the Business
Combination Agreement, may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential
disclosures made for the purposes of allocating contractual risk between the parties to the Business Combination Agreement instead of
establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ
from those applicable to investors and reports and documents filed with the SEC. Investors should not rely on the representations, warranties,
covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to
the Business Combination Agreement. In addition, the representations, warranties, covenants and agreements and other terms of the Business
Combination Agreement may be subject to subsequent waiver or modification. Moreover, information concerning the subject matter of the
representations and warranties and other terms may change after the date of the Business Combination Agreement, which subsequent information
may or may not be fully reflected in Arogo’s public disclosures.
Ancillary Documents
This section describes
the material provisions of certain additional agreements entered into or to be entered into pursuant to the Business Combination Agreement
(the “Ancillary Documents”) but does not purport to describe all of the terms thereof. The following summary is qualified
in its entirety by reference to the complete text of each of the Ancillary Documents, copies of each of which are attached hereto as exhibits.
Shareholders and other interested parties are urged to read such Ancillary Documents in their entirety.
Lock-Up Agreements
On or before the Closing,
the Significant Company Holders shall each have each entered into a Lock-Up Agreement with Purchaser and the Purchaser Representative,
the form of which is attached as Exhibit 10.1 (each, a “Lock-Up Agreement”) with regard to the Exchange Shares to be
received by such Seller. In such Lock-Up Agreement, each Seller agreed that such Seller will not, during the period commencing from the
Closing Date and ending on the six (6) month anniversary of the Closing Date, (i) lend, offer, pledge (except as provided below), hypothecate,
encumber, donate, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any of such Exchange Shares, (ii)
enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership
of any of such Exchange Shares, or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii).
Non-Competition
and Non-Solicitation Agreement
| Also on February 14, 2025, key management of the Company
entered into a two-year Non-Competition and Non-Solicitation Agreement in favor of Purchaser and the Company, which is attached as
Exhibit 10.2 hereto (each, a “Non-Competition Agreement”), each of which agreements described in clauses (a) and
(b) above will become effective as of the Closing of the business combination. |
Letter Agreement
As previously reported by Arogo on Form 8-K filed
with the SEC on December 31, 2021, Arogo’s sponsor, Singto, LLC (previously named Koo Dom Investment LLC) (the “Sponsor”),
along with each officer and director of Arogo, entered into a Letter Agreement dated December 23, 2021 whereby the Sponsor and each officer
and director agreed that it, he or she shall not transfer below) any of their shares until the earlier of (A) six months after the completion
of Arogo’s business combination, and (B) subsequent to the business combination, (x) if the closing price of Arogo Class A Common
Stock equals or exceeds $12.00 per unit (as adjusted for share subdivisions, share dividends, reorganizations, recapitalizations and the
like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the business combination or (y) the
date on which Arogo completes a liquidation, merger, capital share exchange, reorganization or other similar transaction that results
in all of Arogo’s shareholders having the right to exchange their shares of Arogo Class A Common Stock for cash, securities or other
property.
Sponsor Support
Agreement
Also on February 14,
2025, Arogo, the Sponsor, and the Company entered into the Sponsor Support Agreement, which is attached hereto as Exhibit 10.4. Pursuant
to the terms of the Sponsor Support Agreement, the Sponsor agreed to vote their Arogo founder shares and Private Placement Shares, as
applicable, in favor of the adoption and approval of the Business Combination Agreement and the Transactions.
Voting Agreement
Also on February 14,
2025, Arogo, the Company, and the Company Shareholders entered into the Voting Agreement, which is attached hereto as Exhibit 10.5. Pursuant
to the terms of the Voting Agreement, the Company and the Company Shareholders agreed to vote in favor of the adoption and approval of
the Business Combination Agreement and the Transactions.
The Lock-Up
Agreement, Non-Competition and Non-Solicitation Agreement, Letter Agreement, Sponsor Support Agreement and Voting Agreement are filed
with this Current Report on Form 8-K as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, and are incorporated herein by reference,
and the foregoing descriptions of the Lock-Up Agreement, Non-Competition and Non-Solicitation Agreement, Letter Agreement, Sponsor Support
Agreement and Voting Agreement are qualified in their entirety by reference thereto.
Item 7.01 Regulation
FD Disclosure
On February 18, 2025,
Arogo issued a press release announcing the execution of the Business Combination Agreement. A copy of the press release is furnished
as Exhibit 99.1 hereto.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. |
|
Description |
| 2.1* |
|
Business Combination Agreement by and among Arogo Capital Acquisition Corp., BTL Merger (Cayman) Ltd., Singto, LLC, a Delaware limited liability company in the capacity as the representative from and after the effective time of the business combination, BTL Holdings (Cayman) Limited, Mr. Nusttanakit Sasianon and Mr Sawin Laosethakul, and Bangkok Tellink Co., Ltd. dated as of February 14, 2025. |
| 10.1 |
|
Form of Lock-Up Agreement. |
| 10.2 |
|
Non-Competition and Non-Solicitation Agreement by and among Arogo Capital Acquisition Corp., BTL Merger (Cayman) Ltd., Singto, LLC, a Delaware limited liability company in the capacity as the representative from and after the effective time of the business combination, BTL Holdings (Cayman) Limited, dated as of February 14, 2025. |
| 10.3 |
|
Letter Agreement, dated December 23, 2021, among the Company, Koo Dom Investment LLC and each of the executive officers and directors of the Company. Incorporated by reference as Exhibit 10.1 to Arogo Capital Acquisition Corp.’s Form 8-K filed with the SEC on December 31, 2021. |
| 10.4 |
|
Sponsor Support Agreement dated as of February 14, 2025 |
| 10.5 |
|
Voting Agreement between Arogo, the Company and the Company Shareholders dated as of February 14, 2025. |
| 99.1 |
|
Press Release issued February 18, 2025. |
| 104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
| * |
The exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the Securities and Exchange Commission upon its request. |
Forward-Looking
Statements
The information in
this report includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United
States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “estimate,”
“plan,” “project,” “forecast,” “intend,” “may,” “will,” “expect,”
“continue,” “should,” “would,” “anticipate,” “believe,” “seek,”
“target,” “predict,” “potential,” “seem,” “future,” “outlook”
or other similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the
absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include, but are not limited
to, (1) statements regarding estimates and forecasts of financial and performance metrics and projections of market opportunity and market
share; (2) references with respect to the anticipated benefits of the proposed Business Combination and the projected future financial
performance of Arogo and the Company’s operating companies following the proposed Business Combination; (3) changes in the market
for the Company’s products and services and expansion plans and opportunities; (4) the Company’s unit economics; (5) the sources
and uses of cash of the proposed Business Combination; (6) the anticipated capitalization and enterprise value of the combined company
following the consummation of the proposed Business Combination; (7) the projected technological developments of the Company and its competitors;
(8) anticipated short- and long-term customer benefits; (9) current and future potential commercial and customer relationships; (10) the
ability to grow efficiently at scale; (11) anticipated investments in research and development and the effect of these investments and
timing related to commercial product launches; and (12) expectations related to the terms and timing of the proposed Business Combination.
These statements are
based on various assumptions, whether or not identified in this report, and on the current expectations of the Company’s and Arogo’s
management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only
and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive
statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions.
Many actual events and circumstances are beyond the control of the Company and Arogo. These forward-looking statements are subject to
a number of risks and uncertainties, including the occurrence of any event, change or other circumstances that could give rise to the
termination of the Business Combination Agreement; the risk that the Business Combination disrupts current plans and operations as a result
of the announcement and consummation of the transactions described herein; the inability to recognize the anticipated benefits of the
Business Combination; the ability to obtain or maintain the listing of the Pubco’s securities on The Nasdaq Stock Market, following
the Business Combination, including having the requisite number of shareholders; costs related to the Business Combination; changes in
domestic and foreign business, market, financial, political and legal conditions; risks relating to the uncertainty of the projected financial
information with respect to the Company; the Company’s ability to successfully expand its products and implement its growth strategy;
the Company’s ability to manage risks relating to its operations and business, including information technology and cybersecurity
risks, failure to adequately forecast supply and demand, loss of key customers and deterioration in relationships between the Company
and its employees; the Company’s ability to successfully collaborate with business partners; demand for the Company’s current
and future offerings; risks related to increased competition; risks relating to potential disruption in the transportation and shipping
infrastructure, including trade policies and export controls; risks that the Company is unable to secure or protect its intellectual property;
risks that the post-combination company experiences difficulties managing its growth and expanding operations; the inability of the parties
to successfully or timely consummate the proposed Business Combination, including the risk that any required shareholder or regulatory
approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or
the expected benefits of the proposed Business Combination; the outcome of any legal proceedings that may be instituted against the Company,
Arogo or Pubco or other following announcement of the proposed Business Combination and transactions contemplated thereby; the ability
of the Company to execute its business model, including market acceptance of its planned products and services and achieving sufficient
production volumes at acceptable quality levels and prices; technological improvements by the Company’s peers and competitors; and
those risk factors discussed in documents of Pubco and Arogo filed, or to be filed, with the Securities and Exchange Commission (the “SEC”).
If any of these risks
materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking
statements. There may be additional risks that neither Arogo nor the Company presently know or that Arogo and the Company currently believe
are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking
statements reflect Arogo’s and the Company’s expectations, plans or forecasts of future events and views as of the date of
this report. Arogo and the Company anticipate that subsequent events and developments will cause Arogo’s and the Company’s
assessments to change. However, while Arogo and the Company may elect to update these forward-looking statements at some point in the
future, Arogo and the Company specifically disclaim any obligation to do so. Readers are referred to the most recent reports filed with
the SEC by Arogo. Readers are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date
made, and we undertake no obligation to update or revise the forward-looking statements, whether as a result of new information, future
events or otherwise.
Additional Information
Pubco intends to file
with the SEC, a Registration Statement on Form F-4 (as may be amended, the “Registration Statement”), which will include a
preliminary proxy statement of Arogo Capital Acquisition Corp (“Arogo”) and a prospectus in connection with the proposed Business
Combination involving Arogo, BTL Holdings (Cayman) Limited (the “Pubco”), BTL Merger (Cayman) Ltd. (“Merger Sub”),
and Bangkok Tellink Co., Ltd. (the “Company”). The definitive proxy statement and other relevant documents will be mailed
to shareholders of Arogo as of a record date to be established for voting on Arogo’s proposed Business Combination with the Company.
SHAREHOLDERS OF AROGO AND OTHER INTERESTED PARTIES ARE URGED TO READ, WHEN AVAILABLE, THE PRELIMINARY PROXY STATEMENT, AND AMENDMENTS
THERETO, AND THE DEFINITIVE PROXY STATEMENT IN CONNECTION WITH AROGO’S SOLICITATION OF PROXIES FOR THE SPECIAL MEETING OF ITS SHAREHOLDERS
TO BE HELD TO APPROVE THE BUSINESS COMBINATION BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT AROGO, THE COMPANY, PUBCO
AND THE BUSINESS COMBINATION. Stockholders will also be able to obtain copies of the Registration Statement and the proxy statement/prospectus,
without charge, once available, on the SEC’s website at www.sec.gov or by directing a request to: Arogo Capital Acquisition Corp.,
848 Brickell Avenue, Penthouse 5, Miami, FL 33131, Attention: Suradech Taweesaengsakulthai.
Participants in
the Business Combination
Pubco, Arogo and their
respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the shareholders of Arogo
in connection with the Business Combination. Information regarding the officers and directors of Arogo is set forth in Arogo’s annual
report on Form 10-K, which was filed with the SEC on May 10, 2024. Additional information regarding the interests of such potential participants
will also be included in the Registration Statement on Form F-4 (and will be included in the definitive proxy statement/prospectus for
the Business Combination) and other relevant documents filed with the SEC.
Disclaimer
This communication
shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities
in any jurisdiction in which the offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities
laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section
10 of the Securities Act of 1933, as amended.
SIGNATURES
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.
| Dated: February 20, 2025 |
|
| |
|
AROGO CAPITAL ACQUISITION CORP. |
|
| |
|
| By: |
/s/ Suradech Taweesaengsakulthai |
|
| Name: |
Suradech Taweesaengsakulthai |
|
| Title: |
Chief Executive Officer |
|
Exhibit 2.1
Execution Version
AGREEMENT AND
PLAN OF MERGER
by and among
Arogo Capital Acquisition Corp.,
as the Purchaser,
BTL Merger (Cayman) Ltd.,
as Merger Sub,
BTL Holdings (Cayman) Limited
as Pubco,
Singto, LLC,
in the capacity as the Purchaser Representative,
Nusttanakit Sasianon and Sawin Laosethakul,
jointly and solely in their capacity as the Seller Representatives,
and
Bangkok Tellink Co., Ltd.,
as the Company,
Dated as of February
14, 2025
TABLE OF CONTENTS
| |
Page |
|
|
| Article I. MERGER |
2 |
| 1.1. |
Merger |
2 |
| 1.2. |
Transaction Effective Time |
2 |
| 1.3. |
Effect of the Merger |
2 |
| 1.4. |
Tax Treatment |
3 |
| 1.5. |
Certificate of Incorporation and Bylaws |
3 |
| 1.6. |
Directors and Officers of the Transaction Surviving Corporation |
3 |
| 1.7. |
Merger Consideration |
3 |
| 1.8. |
Conversion of Company Stock |
4 |
| 1.9. |
Treasury Stock |
4 |
| 1.10. |
Rights Cease to Exist |
4 |
| 1.11. |
Dissenting Shares |
4 |
| 1.12. |
Surrender of Company Securities and Disbursement of Merger Consideration |
4 |
| 1.13. |
Effect of Transaction on Merger Sub Stock |
4 |
| 1.14. |
Closing Calculations |
4 |
| 1.15. |
Merger Consideration Adjustment |
5 |
| 1.16. |
Taking of Necessary Action; Further Action |
6 |
| 1.17. |
Appraisal and Dissenter’s Rights |
6 |
| 1.18. |
Amended Purchaser Certificate of Incorporation |
7 |
| |
|
| Article II. CLOSING |
7 |
| 2.1. |
Closing |
7 |
| |
|
| Article III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER |
8 |
| 3.1. |
Organization and Standing |
8 |
| 3.2. |
Authorization; Binding Agreement |
8 |
| 3.3. |
Governmental Approvals |
9 |
| 3.4. |
Non-Contravention |
9 |
| 3.5. |
Capitalization |
9 |
| 3.6. |
SEC Filings and Purchaser Financials |
10 |
| 3.7. |
Absence of Certain Changes |
11 |
| 3.8. |
Compliance with Laws |
11 |
| 3.9. |
Actions; Orders; Permits |
11 |
| 3.10. |
Taxes and Returns |
11 |
| 3.11. |
Employees and Employee Benefit Plans |
12 |
| 3.12. |
Properties |
12 |
| 3.13. |
Material Contracts |
12 |
| 3.14. |
Transactions with Affiliates |
12 |
| 3.15. |
Merger Sub Activities |
13 |
| 3.16. |
Investment Company Act |
13 |
| 3.17. |
Finders and Brokers |
13 |
| 3.18. |
Ownership of Stockholder Merger Consideration |
13 |
| 3.19. |
Certain Business Practices |
13 |
| 3.20. |
Insurance |
13 |
| 3.21. |
Purchaser Trust Account |
14 |
| 3.22. |
Independent Investigation |
14 |
| Article IV. representations and warranties of THE COMPANY |
14 |
| 4.1. |
Organization and Standing |
14 |
| 4.2. |
Authorization; Binding Agreement |
15 |
| 4.3. |
Capitalization |
15 |
| 4.4. |
Subsidiaries |
16 |
| 4.5. |
Governmental Approvals |
16 |
| 4.6. |
Non-Contravention |
16 |
| 4.7. |
Financial Statements |
17 |
| 4.8. |
Absence of Certain Changes |
18 |
| 4.9. |
Compliance with Laws |
18 |
| 4.10. |
Company Permits |
18 |
| 4.11. |
Litigation |
18 |
| 4.12. |
Material Contracts |
19 |
| 4.13. |
Intellectual Property |
20 |
| 4.14. |
Taxes and Returns |
22 |
| 4.15. |
Real Property |
23 |
| 4.16. |
Personal Property |
23 |
| 4.17. |
Title to and Sufficiency of Assets |
24 |
| 4.18. |
Employee Matters |
24 |
| 4.19. |
Benefit Plans |
25 |
| 4.20. |
Environmental Matters |
26 |
| 4.21. |
Transactions with Related Persons |
27 |
| 4.22. |
Insurance |
27 |
| 4.23. |
Books and Records |
27 |
| 4.24. |
Top Customers and Suppliers |
27 |
| 4.25. |
Certain Business Practices |
28 |
| 4.26. |
Compliance with Privacy Laws, Privacy Policies and Certain Contracts |
28 |
| 4.27. |
Investment Company Act |
29 |
| 4.28. |
Finders and Brokers |
29 |
| 4.29. |
Independent Investigation |
29 |
| 4.30. |
Information Supplied |
29 |
| 4.31. |
Disclosure |
29 |
| |
|
| Article V. COVENANTS |
32 |
| 5.1. |
Access and Information |
32 |
| 5.2. |
Conduct of Business of the Company |
33 |
| 5.3. |
Conduct of Business of the Purchaser |
35 |
| 5.4. |
Annual and Interim Financial Statements |
37 |
| 5.5. |
Purchaser Public Filings |
38 |
| 5.6. |
No Solicitation |
38 |
| 5.7. |
No Trading |
39 |
| 5.8. |
Notification of Certain Matters |
39 |
| 5.9. |
Efforts |
39 |
| 5.10. |
Tax Matters |
40 |
| 5.11. |
Further Assurances |
40 |
| 5.12. |
The Registration Statement |
41 |
| 5.13. |
Company Stockholder Meeting |
42 |
| 5.14. |
Public Announcements |
42 |
| 5.15. |
Confidential Information |
43 |
| 5.16. |
Documents and Information |
44 |
| 5.17. |
Post-Closing Board of Directors and Executive Officers |
44 |
| 5.18. |
Indemnification of Officers and Directors; Tail Insurance |
44 |
| 5.19. |
Trust Account Proceeds |
45 |
| 5.20. |
PIPE Investment |
45 |
| Article VI. survival and indemnification |
46 |
| 6.1. |
Survival |
46 |
| |
|
| Article VII. Closing conditions |
46 |
| 7.1. |
Conditions of Each Party’s Obligations |
46 |
| 7.2. |
Conditions to Obligations of the Company |
47 |
| 7.3. |
Conditions to Obligations of the Purchaser |
48 |
| 7.4. |
Frustration of Conditions |
49 |
| |
|
| Article VIII. TERMINATION AND EXPENSES |
50 |
| 8.1. |
Termination |
50 |
| 8.2. |
Effect of Termination |
51 |
| 8.3. |
Fees and Expenses |
51 |
| |
|
| Article IX. WAIVERS and releases |
52 |
| 9.1. |
Waiver of Claims Against Trust |
52 |
| |
|
| ARTICLE x. MISCELLANEOUS |
53 |
| 10.1. |
Notices |
53 |
| 10.2. |
Binding Effect; Assignment |
54 |
| 10.3. |
Third Parties |
54 |
| 10.4. |
Arbitration |
54 |
| 10.5. |
Governing Law; Jurisdiction |
54 |
| 10.6. |
WAIVER OF JURY TRIAL |
55 |
| 10.7. |
Specific Performance |
55 |
| 10.8. |
Severability |
55 |
| 10.9. |
Amendment |
55 |
| 10.10. |
Waiver |
55 |
| 10.11. |
Entire Agreement |
55 |
| 10.12. |
Interpretation |
56 |
| 10.13. |
Counterparts |
56 |
| 10.14. |
Purchaser Representative |
56 |
| 10.15. |
Seller Representative |
57 |
| 10.16. |
Legal Representation |
59 |
| |
|
| Article XI. DEFINITIONS |
59 |
| 11.1. Certain Definitions |
59 |
| 11.2. Section References |
68 |
INDEX OF EXHIBITS
| Exhibit |
|
Description |
| |
|
|
| Exhibit A |
|
Form of Voting Agreement |
| Exhibit B |
|
Form of Sponsor Support Agreement |
| Exhibit C |
|
Form of Lock-Up Agreement |
| Exhibit D |
|
Form of Non-Competition and Non-Solicitation Agreement |
| Exhibit E |
|
Form of Letter of Transmittal |
| Exhibit F |
|
Form of Equity Incentive Plan |
| Exhibit G |
|
Form of Registration Rights Agreement |
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of
Merger (this “Agreement”) is made and entered into as of February 14, 2025 (the “Effective Date”)
by and among (i) Arogo Capital Acquisition Corp., a company incorporated in Delaware (together with its successors, the “Purchaser”),
(ii) BTL Merger (Cayman) Ltd., a to-be-formed Cayman Islands exempted company, and a wholly-owned subsidiary of the Company upon
execution of a joinder thereto (“Merger Sub”), (iii) Singto, LLC, a Delaware limited liability
company in the capacity as the representative from and after the Effective Time (as defined below) for the stockholders of the Purchaser
(other than the Company Security Holders (as defined below) as of immediately prior to the Effective Time and their successors and assignees)
in accordance with the terms and conditions of this Agreement (the “Purchaser Representative”), (iv) BTL
Holdings (Cayman) Limited, upon execution of a joinder agreement to become party to this Agreement (a “Joinder”),
a to-be-formed Cayman Islands exempted company (“Pubco”), (v) Mr. Nusttanakit Sasianon and Mr Sawin Laosethakul,
jointly and solely in their capacity as the representatives from and after the Effective Time for the Company Shareholders (as defined
below) as of immediately prior to the Effective Time in accordance with the terms and conditions of this Agreement (the “Seller
Representative”), and (vi) Bangkok Tellink Co., Ltd., a Thailand-based registered company (the “Company”).
The Purchaser, Merger Sub, the Purchaser Representative, the Seller Representative and the Company are sometimes referred to herein individually
as a “Party” and, collectively, as the “Parties.”
RECITALS:
A. The
Company is a licensed Mobile Virtual Network Service Operator (“MVNO”) as well as a licensed Mobile Virtual
Network Aggregator (“MVNA”) and offers mobile phone packages across multiple frequencies (700MHz, 850MHz, 2100MHz,
2300MHz, and 26GHz) and under its ‘INFINITE’ brand, it also provides a range of services including Smart Solutions, IoT (Internet-of-Things)
Sim Cards, E-sim, SMPP (virtual SMS), SIP trunk (voice virtual number), and software development;
B. Each
of Pubco and Merger Sub will be a newly-incorporated Cayman Islands exempted company that will be owned entirely by the shareholders of
the Company who are not U.S. citizens or residents;
C. The
Parties intend to effect a business combination transaction whereby (a) Purchaser will merge with and into Merger Sub, with Purchaser
continuing as the surviving entity or, alternatively, Purchaser will merge with and into Pubco (the “Merger”),
as a result of which, (i) Purchaser shall become a wholly-owned subsidiary of Pubco, and (ii) each issued and outstanding security of
Purchaser immediately prior to the Effective Time (as defined below) shall no longer be outstanding and shall automatically be cancelled,
in exchange for the right of the holder thereof to receive a substantially equivalent security of Pubco, and (b) Pubco shall acquire all
of the issued and outstanding ordinary shares of the Company from the Sellers in exchange for ordinary shares of Pubco (the “Share
Exchange”, and collectively with the Merger and the other transactions contemplated by this Agreement and the Ancillary
Documents, the “Transactions”), all upon the terms and subject to the conditions set forth in this Agreement
and in accordance with the applicable provisions of the DGCL, the CCC, and the Cayman Act (each as defined herein), all in accordance
with the terms of this Agreement;
D. The
boards of directors of the Company and the Purchaser have each (i) determined that the Merger is fair, advisable and in the best
interests of their respective companies and stockholders, and (ii) approved this Agreement and the transactions contemplated hereby, including
the Merger, upon the terms and subject to the conditions set forth herein;
E. The
Purchaser has received voting and support agreements in the form attached as Exhibit A hereto (collectively, the “Voting
Agreements”) signed by the Company, its executive officers and directors, and the Significant Company Holders (as defined
herein) sufficient to approve the Merger and the other transactions contemplated by this Agreement;
F. Contemporaneously
with the execution of, and as a condition and an inducement to the Purchaser and the Company entering into this Agreement, specified stockholders
of Purchaser are entering into and delivering Support Agreements, substantially in the form attached hereto as Exhibit B (each,
a “Sponsor Support Agreement”), pursuant to which each such Purchaser stockholder has agreed (x) not to transfer
or redeem any shares of Purchaser Common Stock held by such Purchaser stockholder in accordance with the Insider Letter, (y) to vote in
favor of this Agreement and the Merger at the Purchaser Special Meeting in accordance with the Insider Letter (as defined herein) and
(z) to waive any adjustment to the conversion ratio set forth in the Purchaser Certificate of Incorporation or any other anti-dilution
or similar protection with respect to the Purchaser Class B Common Stock (whether resulting from the transactions contemplated hereby,
by the Ancillary Documents or by any other transaction consummated in connection with the transactions contemplated hereby);
G. On
or before the Closing, (a) the Significant Company Holders shall each have each entered into a Lock-Up Agreement with Purchaser and the
Purchaser Representative, the form of which is attached as Exhibit C hereto (each, a “Lock-Up Agreement”)
and (b) Key Management shall have each entered into a Non-Competition and Non-Solicitation Agreement in favor of Purchaser and the Company,
the form of which is attached as Exhibit D hereto (each, a “Non-Competition Agreement”), each of which
agreements described in clauses (a) and (b) above will become effective as of the Closing;
H. On
or before the Closing, the Company and Pubco will perform a series of transactions as a result of which the Company will become a wholly-owned
subsidiary of Pubco and all the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations
of the Company shall become the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations
of Pubco, which shall include the assumption by Pubco, of any and all agreements, covenants, duties and obligations of the Company; and
I. Certain
capitalized terms used herein are defined in Article XI hereof.
NOW, THEREFORE, in
consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations,
warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties hereto agree as
follows:
Article
I
MERGER
1.1 Merger.
At the Effective Time, immediately following the consummation of the Share Exchange, and subject to and upon the terms and conditions
of this Agreement, and in accordance with the applicable provisions of the DGCL, the CCC, and the Cayman Act, (a) Purchaser and
Merger Sub shall consummate the Merger, pursuant to which Merger Sub shall be merged with and into Purchaser, following which Merger Sub
shall be removed from the register of companies in the Cayman Islands and be dissolved and the separate corporate existence of Merger
Sub shall cease and Purchaser shall continue as the surviving company. Purchaser, as the surviving company after the Merger, is hereinafter
sometimes referred to as the “Surviving Company” (provided, that references to Purchaser for periods after the
Effective Time shall include the Surviving Company) or (b) Purchaser and Pubco shall consummate the Merger, pursuant to which Purchaser
shall be merged with and into Pubco and shall become a wholly-owned subsidiary of Pubco. The Merger shall have the effects specified in
the Cayman Act.
1.2 Effective
Time. On the Closing Date, Merger Sub or, alternatively, Pubco and Purchaser shall execute a plan of merger in form and substance
reasonably acceptable to Purchaser, Pubco, the Sellers and the Company (the “Plan of Merger”), and the Parties
shall file the Plan of Merger and such other documents as required by the Cayman Act with the Registrar of Companies of the Cayman Islands
as provided in Section 233 of the Cayman Act and Purchaser's and Merger Sub's or, alternatively, Pubco’s Organizational Documents.
The Merger shall become effective at the time on the Closing Date when the Plan of Merger is registered by the Registrar of Companies
of the Cayman Islands (or such other date specified in the Plan of Merger, provided that such date shall not be a date later than the
90th date after the date of such registration) (the “Effective Time”).
1.3 Effect
of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Plan of Merger and the
applicable provisions of the Cayman Act. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time,
all the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of Merger Sub and
Purchaser shall become the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations
of the Surviving Corporation or, alternatively, Pubco, which shall include the assumption by the Surviving Corporation or, alternatively,
Pubco, of any and all agreements, covenants, duties and obligations of Merger Sub and Purchaser set forth in this Agreement to be performed
after the Effective Time and the Surviving Company shall continue its existence as a wholly-owned Subsidiary of Pubco.
1.4 Tax
Treatment. The Parties hereby agree and acknowledge that for U.S. federal income tax purposes, the Merger and the Share Exchange,
taken together, are intended to qualify as exchanges described in Section 351 of the Code. The Parties hereby agree to file all Tax and
other informational returns on a basis consistent with such characterization. Each of the Parties acknowledge and agree that each (i)
has had the opportunity to obtain independent legal and tax advice with respect to the transactions contemplated by this Agreement, and
(ii) is responsible for paying its own Taxes, including any adverse Tax consequences that may result if the Merger and the Share Exchange,
taken together, does not qualify under Section 351 of the Code. F
1.5 Organizational
Documents of Surviving Company. At the Effective Time, the Surviving Company shall adopt an amended and restated memorandum and articles
of association (the “Surviving Company A&R Memorandum and Articles”) which are substantially in the form
of the memorandum and articles of association of Merger Sub or, alternatively, Pubco, as in effect immediately prior to the Effective
Time, as the amended and restated memorandum of association and articles of association of the Surviving Company; provided, that at the
Effective Time, (a) references therein to the name of the Surviving Company shall be amended to be such name as reasonably determined
by the Company and (b) references therein to the authorized share capital of the Surviving Company shall be amended to refer to the authorized
share capital of the Surviving Company as approved in the Plan of Merger, if necessary.
1.6 Directors
and Officers of the Surviving Corporation. At the Effective Time, the board of directors and executive officers of the Surviving Corporation
shall be the board of directors and executive officers of Pubco, after giving effect to Section 5.17, each to hold office in accordance
with the A&R Memorandum and Articles of the Surviving Corporation until their respective successors are duly elected or appointed
and qualified or their earlier death, resignation or removal.
1.7 Effect
of Merger on Issued Securities of Purchaser. At the Effective Time, by virtue of the Merger and without any action on the part of
any Party or the holders of securities of Purchaser, Pubco or Merger Sub:
(a) Purchaser Units.
At the Effective Time, each issued and outstanding Purchaser Unit shall be automatically detached and the holder thereof shall be deemed
to hold one share of Purchaser Class A Common Stock and one Purchaser Warrant in accordance with the terms of the Purchaser Unit, which
underlying Purchaser Securities shall be converted in accordance with the applicable terms of Section 1.7.
(b) Purchaser Common
Stock. At the Effective Time, each issued and outstanding share of Purchaser Common Stock (other than those described in Section
1.6(e)) shall be converted automatically into one Pubco Ordinary Share, following which, all Purchaser Common Stock shall cease to be
outstanding and shall automatically be canceled and shall cease to exist. The holders of certificates previously evidencing Purchaser
Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares, except as
provided herein or by Law. Each certificate previously evidencing Purchaser Common Stock shall be exchanged for a certificate (if requested)
representing the same number of Pubco Ordinary Shares upon the surrender of such certificate in accordance with Section 1.8.
(c) Purchaser Warrants.
At the Effective Time, each outstanding Purchaser Public Warrant shall be automatically converted into one Pubco Public Warrant and each
outstanding Purchaser Private Warrant shall be automatically converted into one Pubco Private Warrant. At the Effective Time, the Purchaser
Warrants shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist. Each of the Pubco Public
Warrants shall have, and be subject to, substantially the same terms and conditions set forth in the Purchaser Public Warrants, and each
of the Pubco Private Warrants shall have, and be subject to, substantially the same terms and conditions set forth in the Purchaser Private
Warrants, except that in each case they shall represent the right to acquire Pubco Ordinary Shares in lieu of Purchaser Common Stock.
At or prior to the Effective Time, Pubco shall take all corporate action necessary to reserve for future issuance, and shall maintain
such reservation for so long as any of the Pubco Warrants remain outstanding, a sufficient number of Pubco Ordinary Shares for delivery
upon the exercise of such Pubco Warrants.
(d) Transfers of
Ownership. If any certificate for securities of Purchaser is to be issued in a name other than that in which the certificate surrendered
in exchange therefor is registered, it will be a condition of the issuance thereof that the certificate so surrendered will be properly
endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer and that the person requesting
such exchange will have paid to Purchaser or any agent designated by it any transfer or other Taxes required by reason of the issuance
of a certificate for securities of Purchaser in any name other than that of the registered holder of the certificate surrendered, or established
to the satisfaction of Purchaser or any agent designated by it that such tax has been paid or is not payable.
(e) No Liability.
Notwithstanding anything to the contrary in this Section 1.7, none of the Surviving Company, Pubco or any other Party hereto shall
be liable to any Person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar
law.
1.8 Effect
of Merger on Merger Sub and Pubco Ordinary Shares. At the Effective Time, by virtue of, or in connection with, the Merger and without
any action on the part of any Party or the holders of any capital shares of Purchaser, Pubco or Merger Sub: (a) all of the Merger Sub
Ordinary Shares issued and outstanding immediately prior to the Effective Time shall be converted into an equal number of ordinary shares
of the Surviving Company. In connection with the Merger, at the Effective Time (but for the avoidance of doubt following the conversion
of Purchaser Ordinary Shares into Pubco Ordinary Shares pursuant to section 1.7(b)), the Company shall surrender for no consideration
all of the shares of Pubco issued and outstanding immediately prior to the Effective Time which were held by the Company, and such Pubco
Ordinary Shares shall be canceled without any conversion thereof or payment therefor.
1.9 Treasury
Stock. At the Effective Time, if there are any Company Securities that are owned by the Company as treasury shares or any Company
Securities owned by any direct or indirect Subsidiary of the Company immediately prior to the Effective Time, such Company Securities
shall be canceled and shall cease to exist without any conversion thereof or payment therefor.
1.10 Rights
Cease to Exist. As of the Effective Time, all shares of Company Shares shall no longer be outstanding, shall automatically be canceled
and shall cease to exist and each holder of shares of Company Shares shall cease to have any rights with respect thereto, except the rights
set forth in this Agreement.
1.11 Dissenting
Shares. Each of the Dissenting Shares issued and outstanding immediately prior to the Effective Time shall be cancelled and
cease to exist in accordance with Section 1.17 and shall thereafter represent only the right to receive the applicable payments
set forth in Section 1.17.
1.12 Surrender
of Company Securities and Disbursement of Exchange Consideration. All securities issued upon the surrender of Purchaser Securities
in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such securities,
provided that any restrictions on the sale and transfer of Purchaser Securities shall also apply to the Pubco Securities so issued in
exchange. At or prior to the Effective Time, the Purchaser shall send, or shall cause the Exchange Agent to send, to each Company Shareholder,
a letter of transmittal for use in such exchange, in the form attached hereto as Exhibit E (a “Letter of Transmittal”)
(which shall specify that the delivery of Company Shares in respect of the Stockholder Exchange Consideration shall be effected, and risk
of loss and title shall pass, only upon proper delivery of a properly completed and duly executed Letter of Transmittal and Company Certificates,
if any (or a Lost Certificate Affidavit)), to the Exchange Agent for use in such exchange.
1.13 Effect
of Transaction on Merger Sub Stock. At the Effective Time, by virtue of the Merger and without any action on the part of any Party
or the holders of any Company Securities or the holders of any shares of capital stock of the Purchaser or Merger Sub, each share of Merger
Sub Common Shares outstanding immediately prior to the Effective Time shall be converted into an equal number of shares of common stock
of the Surviving Corporation, with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding
shares of capital stock of the Surviving Corporation.
1.14 Closing
Calculations. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the Purchaser (i) an allocation
schedule (the "Allocation Schedule") setting forth (a) the number of Company Shares held by each Company Shareholder,
and (b) the portion of the Exchange Consideration allocated to each Company Shareholder, and (ii) a statement certified by the Company’s
chief executive officer (the “Estimated Closing Statement”) setting forth a good faith calculation of the Company’s
estimate of the Closing Net Indebtedness, Net Working Capital and Transaction Expenses, in each case, as of the Reference Time, and the
resulting Exchange Consideration based on such estimates, in reasonable detail including for each component thereof, along with the amount
owed to each creditor of any of the Target Companies, and bank statements and other evidence reasonably necessary to confirm such calculations.
Promptly upon delivering the Estimated Closing Statement to the Purchaser, if requested by the Purchaser, the Company will meet with the
Purchaser to review and discuss the Estimated Closing Statement and the Company will consider in good faith the Purchaser’s comments
to the Estimated Closing Statement and make any appropriate adjustments to the Estimated Closing Statement prior to the Closing, which
adjusted Estimated Closing Statement, as mutually approved by the Company and the Purchaser both acting reasonably and in good faith,
shall thereafter become the Estimated Closing Statement for all purposes of this Agreement. The Estimated Closing Statement and the determinations
contained therein shall be prepared in accordance with the Accounting Principles and otherwise in accordance with this Agreement.
1.15 Exchange Consideration
Adjustment.
(a) Within
ninety (90) days after the Closing Date, Purchaser’s Chief Financial Officer (the “CFO”) shall deliver
to the Purchaser Representative and the Seller Representative a statement (the “Closing Statement”) setting
forth (i) a consolidated balance sheet of the Target Companies as of the Reference Time and (ii) a good faith calculation of the Closing
Net Indebtedness, Net Working Capital and Transaction Expenses, in each case, as of the Reference Time, and the resulting Exchange Consideration
using the formula in Section 1.7. The Closing Statement shall be prepared, and the Closing Net Indebtedness, Net Working Capital,
and Transaction Expenses and the resulting Exchange Consideration and shares shall be determined in accordance with the Accounting Principles
and otherwise in accordance with this Agreement.
(b) After
delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives
on their behalves, shall be permitted reasonable access to the books, records, working papers, files, facilities and personnel of the
Target Companies relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and
their respective Representatives on their behalves, may make inquiries of the CFO and related Purchaser and Target Company personnel and
advisors regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and
Purchaser and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser
Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative
Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail)
(an “Objection Statement”). If an Objection Statement is not delivered by a Representative Party within thirty
(30) days following the date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest
the Closing Statement, all determinations and calculations set forth therein, and the resulting Exchange Consideration set forth therein.
If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative
shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative
and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of
either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”),
the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section
1.15(c). For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e.,
no prior material business relationship with any party) accounting firm appointed by the Purchaser Representative and the Seller Representative,
which appointment will be made no later than ten (10) days after the Independent Expert Notice Date; provided, that if the Independent
Expert does not accept its appointment or if the Purchaser Representative and the Seller Representative cannot agree on the Independent
Expert, in either case within twenty (20) days after the Independent Expert Notice Date, either Representative Party may require, by written
notice to the other Representative Party, that the Independent Expert be selected by the New York City Regional Office of the AAA in accordance
with the AAA’s procedures. The parties agree that the Independent Expert will be deemed to be independent even though a Party or
its Affiliates may, in the future, designate the Independent Expert to resolve disputes of the types described in this Section 1.15. The
Parties acknowledge that any information provided pursuant to this Section 1.15 will be subject to the confidentiality obligations of
Section 5.15.
(c) If
a dispute with respect to the Closing Statement is submitted in accordance with this Section 1.15 to the Independent Expert for final
resolution, the Parties will follow the procedures set forth in this Section 1.15(c). Each of the Seller Representative and the Purchaser
Representative agrees to execute, if requested by the Independent Expert, a reasonable engagement letter with respect to the determination
to be made by the Independent Expert. The Purchaser will bear all fees and expenses of the Independent Expert. Except as provided in the
preceding sentence, all other costs and expenses incurred by the Seller Representative in connection with resolving any dispute hereunder
before the Independent Expert will be borne by the Company Shareholders, and all other costs and expenses incurred by the Purchaser Representative
in connection with resolving any dispute hereunder before the Independent Expert will be borne by the Purchaser. The Independent Expert
will determine only those issues still in dispute as of the Independent Expert Notice Date and the Independent Expert’s determination
will be based solely upon and consistent with the terms and conditions of this Agreement. The determination by the Independent Expert
will be based solely on presentations with respect to such disputed items by the Purchaser Representative and the Seller Representative
to the Independent Expert and not on the Independent Expert’s independent review; provided, that such presentations will
be deemed to include any work papers, records, accounts or similar materials delivered to the Independent Expert by a Representative Party
in connection with such presentations and any materials delivered to the Independent Expert in response to requests by the Independent
Expert. Each of the Seller Representative and the Purchaser Representative will use their reasonable efforts to make their respective
presentations as promptly as practicable following submission to the Independent Expert of the disputed items, and each such Representative
Party will be entitled, as part of its presentation, to respond to the presentation of the other Representative Party and any questions
and requests of the Independent Expert. In deciding any matter, the Independent Expert will be bound by the provisions of this Agreement,
including this Section 1.15. It is the intent of the parties hereto that the activities of the Independent Expert in connection herewith
are not (and should not be considered to be or treated as) an arbitration proceeding or similar arbitral process and that no formal arbitration
rules should be followed (including rules with respect to procedures and discovery). The Seller Representative and the Purchaser Representative
will request that the Independent Expert’s determination be made within forty-five (45) days after its engagement, or as soon thereafter
as possible, will be set forth in a written statement delivered to the Purchaser Representative and the Seller Representative and will
be final, conclusive, non-appealable and binding for all purposes hereunder (other than for fraud or manifest error).
1.16 Taking
of Necessary Action; Further Action. If, at any time after the Effective Time, any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property,
rights, privileges, powers and franchises of the Company and Merger Sub, the officers and directors of the Company and Merger Sub are
fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action,
so long as such action is not inconsistent with this Agreement.
1.17 Appraisal
and Dissenter’s Rights.
(a) Dissenting
Shares. Notwithstanding anything in this Agreement to the contrary, any Dissenting Shares shall not be converted into or represent
a right to receive the applicable consideration for Company Shares set forth in Section 1.7, but instead the holder thereof
shall only be entitled to such rights as are provided by the DGCL. In the event that a holder properly perfects such holder’s appraisal,
dissenters’ or similar rights by demanding and not effectively withdrawing or losing such holder’s appraisal, dissenters’
or similar rights for any shares of Company Shares, the Exchange Agent shall deliver to Purchaser such holder’s portion of the Stockholder
Exchange Consideration that is attributable to such shares at the time such portion of such Stockholder Exchange Consideration is determined
and such rights are perfected.
(b) Withdrawal
or Loss of Rights. Notwithstanding the provisions of Section 1.17(a), if any holder of Dissenting Shares effectively withdraws
or loses (through failure to perfect or otherwise) such holder’s appraisal or dissenters’ rights with respect to such shares
under the DGCL, then, as of the later of the Effective Time and the occurrence of such event, (i) such holder’s shares shall automatically
convert into and represent only the right to receive the consideration for Company Shares, as applicable, set forth in and subject to
the provisions of this Agreement, upon surrender of the certificate(s) formerly representing such shares (if any), and (ii) Purchaser
(to the extent the following amounts have been previously delivered by the Exchange Agent to Purchaser pursuant to Section 1.17(a)
and not returned to the Exchange Agent) or the Exchange Agent shall deliver to such holder such holder’s portion of the Stockholder
Exchange Consideration that is attributable to such shares at the time such rights are withdrawn or lost.
(c) Demands
for Appraisal. The Company shall give Purchaser (i) prompt notice of any written demand for appraisal received by the Company pursuant
to the applicable provisions of the DGCL, and (ii) the opportunity to participate in all negotiations and proceedings with respect to
such demands. The Company shall not, except with the prior written consent of Purchaser, make any payment with respect to any such demands
or offer to settle or settle any such demands. A&R Memorandum and Articles
1.18 Amended
Purchaser Articles and Memorandum of Association. Upon the Effective Time, the Purchaser shall amend and restate its Amended and Restated
Certificate of Incorporation in a form to be mutually agreed between the Purchaser and the Company (the “Amended Purchaser
Articles and Memorandum of Association”) which shall, among other matters, amend the Purchaser’s Certificate of
Incorporation to (i) provide that the name of the Purchaser shall be changed to “Bangkok Tellink Corporation” or such other
name as mutually agreed to by the Parties, (ii) provide for size and structure of the Post-Closing Purchaser Board in accordance with
Section 5.17, and (iii) remove and change certain provisions in the Certificate of Incorporation related to the Purchaser’s
status as a blank check company.
Article
II
SHARE EXCHANGE AND CLOSING
2.1 Exchange
of Company Shares. Immediately after the Effective Time, and subject to and upon the terms and conditions of this Agreement, the Sellers
shall sell, transfer, convey, assign and deliver to Pubco, and Pubco shall purchase, acquire and accept from the Sellers, all of the issued
and outstanding Company Shares held by the Sellers, which shall constitute all issued and outstanding shares of the Company on such date
(collectively, the “Purchased Shares”), free and clear of all Liens (other than potential restrictions on resale
under applicable securities Laws) and with all rights attaching to the Purchased Shares
2.2 Exchange
Consideration.
(a) Exchange Consideration.
Subject to and upon the terms and conditions of this Agreement, in full payment for the Purchased Shares, Pubco shall issue and deliver
to the Sellers an aggregate number of Pubco Ordinary Shares (the “Exchange Shares”) with an aggregate value equal to (i) Three
Hundred Fifty Million U.S. Dollars ($350,000,000.00), plus (or minus if negative) (ii) (A) the Net Working Capital less (B) the Target
Net Working Capital Amount, minus (iii) the Closing Net Debt, and minus (iv) the amount of any unpaid Transaction Expenses (such resulting
amount the “Exchange Consideration”), with each Pubco Ordinary Share valued at $10.00 per share (as equitably adjusted for
share splits, share dividends, combinations, recapitalizations and the like after the Closing, the “Per Share Price”), provided,
that the Exchange Consideration otherwise deliverable to the Sellers after the Closing is subject to adjustment in accordance with this
Agreement and for the indemnification obligations set forth herein. The number of Exchange Shares issued and delivered by Pubco to
the Sellers immediately after the Effective Time shall be determined in accordance with this Section 2.2 and Section 1.15. Each Seller
shall receive its pro rata share of the Exchange Shares, as set forth opposite the name of each Seller on Annex I.
(b) Company Convertible
Securities. Any Company Convertible Security, if not exercised or converted prior to the Effective Time, shall be cancelled, retired and/or
terminated and cease to represent a right to acquire, be exchanged for or convert into Company Shares.
2.3 Seller
Consent. Each Seller, as a shareholder or other security holder of the Company, hereby approves, authorizes and consents to the Company’s
execution and delivery of this Agreement and the Ancillary Documents to which it is or is required to be a party or otherwise bound, the
performance by the Company of its obligations hereunder and thereunder and the consummation by the Company of the transactions contemplated
hereby and thereby. Each Seller acknowledges and agrees that the consents set forth herein are intended and shall constitute such consent
of the Sellers as may be required (and shall, if applicable, operate as a written shareholder resolution of the Company) pursuant to the
Company Organizational Documents, any other agreement in respect of the Company to which any Seller is a party or bound and all applicable
Laws.
2.4 Due
Diligence Review Period.
(a) Purchaser shall have the
Due Diligence Review Period in which to review and/or perform all inspections and studies of the Company’s assets and review records.
The Company shall promptly comply with all reasonable requests for information and document requests by Purchaser relating to the Company.
The Company hereby acknowledges that it will provide to Purchaser and its agents access to such records for the purpose of inspecting
them and will provide Purchaser and its agents with access to the Company’s assets for purposes of appraisal, survey, inspection
and provide copies of all third party reports relating to the assets or facilities that are in the possession of the Company. Purchaser’s
due diligence review shall include the ability to conduct in-depth discussions with the Company’s and department heads and such
other Persons as reasonably requested by Purchaser. Prior to expiration of the Due Diligence Review Period, Purchaser shall have the right
to terminate the transaction set forth herein, in Purchaser’s sole discretion, by delivering a written notice of termination to
Sellers.
(b) Purchaser acknowledges
and agrees that Purchaser shall be responsible for verifying, through Purchaser’s own due diligence, the accuracy and completeness
of all documents and information, including all Records and other materials, provided by Sellers to Purchaser, and any reliance by Purchaser
on such documents and information shall be at Purchaser’s own risk and expense. Likewise, notwithstanding anything to the contrary
herein, Sellers make no representation or warranty whatsoever as to the truth, accuracy or completeness of any materials or information,
including but not limited to the Records and any other materials relating to the Assets, delivered or made available by Sellers to Purchaser
in connection with the transaction contemplated herein.
2.5 Closing.
Subject to the satisfactory completion of the Due Diligence Review Period and the satisfaction or waiver of the conditions set forth in
Article VII, the consummation of the transactions contemplated by this Agreement (the “Closing”) shall
take place electronically via exchange of documents and signatures, on a date and at a time to be agreed upon by Purchaser and the Company,
which date shall be no later than the second (2nd) Business Day after all the Closing conditions to this Agreement have been
satisfied or waived, or at such other date, time or place (including remotely) as the Purchaser and the Company may agree (the date and
time at which the Closing is actually held being the “Closing Date”).
Article
III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Except as set forth in (i)
the disclosure schedules delivered by the Purchaser to the Company on the date hereof (the “Purchaser Disclosure Schedules”),
the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, or (ii) the SEC
Reports that are available on the SEC’s website through EDGAR, the Purchaser represents and warrants to the Company as of the date
of this Agreement and as of the Closing Date, as follows:
3.1 Organization
and Standing. The Purchaser is a corporation duly incorporated, validly existing and in good standing under the Laws of Delaware.
The Purchaser has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as
now being conducted. The Purchaser is duly qualified or licensed and in good standing to do business in each jurisdiction in which the
character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so qualified or licensed or in good standing can be cured without material cost or expense.
The Purchaser has heretofore made available to the Company accurate and complete copies of its Organizational Documents, as currently
in effect. The Purchaser is not in violation of any provision of its Organizational Documents in any material respect.
3.2 Authorization;
Binding Agreement. The Purchaser has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary
Document to which it is a party, to perform the Purchaser’s obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby, subject to obtaining the Required Purchaser Stockholder Approval. The execution and delivery of this
Agreement and each Ancillary Document to which it is a party and the consummation of the transactions contemplated hereby and thereby
(a) have been duly and validly authorized by the board of directors of the Purchaser, and (b) other than the Required Purchaser Stockholder
Approval, no other corporate proceedings, other than as set forth elsewhere in the Agreement, on the part of the Purchaser are necessary
to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate the transactions
contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to which the Purchaser is a party shall be when
delivered, duly and validly executed and delivered by the Purchaser and, assuming the due authorization, execution and delivery of this
Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the valid
and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except to the extent that enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws of general application
affecting the enforcement of creditors’ rights generally or by any applicable statute of limitation or by any valid defense of set-off
or counterclaim, and the fact that equitable remedies or relief (including the remedy of specific performance) are subject to the discretion
of the court from which such relief may be sought (collectively, the “Enforceability Exceptions”). The Purchaser’s
board of directors, by resolutions duly adopted at a meeting duly called and held (i) determined that this Agreement and the Merger and
the other transactions contemplated hereby are advisable, fair to, and in the best interests of, the Purchaser and its stockholders, (ii)
approved this Agreement and the Merger and the other transactions contemplated by this Agreement in accordance with the DGCL, (iii) directed
that this Agreement be submitted to the Purchaser’s stockholders for adoption and (iv) resolved to recommend that the Purchaser’s
stockholders adopt this Agreement.
3.3 Governmental
Approvals. Except as otherwise described in Schedule 3.3, no Consent of or with any Governmental Authority, on the part of
the Purchaser is required to be obtained or made in connection with the execution, delivery or performance by the Purchaser of this Agreement
and each Ancillary Document to which it is a party or the consummation by the Purchaser of the transactions contemplated hereby and thereby,
other than (a) pursuant to Antitrust Laws, (b) such filings as contemplated by this Agreement, (c) any filings required with OTC, Nasdaq
or the SEC with respect to the transactions contemplated by this Agreement, (d) applicable requirements, if any, of the Securities Act,
the Exchange Act, and/ or any state “blue sky” securities Laws, and the rules and regulations thereunder, and (e) where the
failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to have a Material
Adverse Effect on the Purchaser.
3.4 Non-Contravention.
Except as otherwise described in Schedule 3.4, the execution and delivery by the Purchaser of this Agreement and each Ancillary
Document to which it is a party, the consummation by the Purchaser of the transactions contemplated hereby and thereby, and compliance
by the Purchaser with any of the provisions hereof and thereof, will not (a) conflict with or violate any provision of the Purchaser’s
Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 3.3
hereof, and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been
satisfied, conflict with or violate any Law, Order or Consent applicable to the Purchaser, Merger Sub, or any of their properties or assets,
or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of,
(iv) accelerate the performance required by the Purchaser under, (v) result in a right of termination or acceleration under, (vi) give
rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties
or assets of the Purchaser under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person
or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery
schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any
of the terms, conditions or provisions of, any Purchaser Material Contract, except for any deviations from any of the foregoing clauses
(a), (b) or (c) that would not reasonably be expected to have a Material Adverse Effect on the Purchaser.
3.5 Capitalization.
(a) Purchaser
is authorized to issue 110,000,000 shares of common stock, including 100,000,000 shares of Purchaser Class A Common Stock and 10,000,000
shares of Purchaser Class B Common Stock, par value $0.0001 per share; and is authorized to issue 1,000,000 shares of Purchaser Preferred
Stock. The issued and outstanding Purchaser Securities as of the date of this Agreement are set forth on Schedule 3.5(a). There
are no issued or outstanding shares of Purchaser Preferred Stock. All outstanding shares of Purchaser Common Stock are duly authorized,
validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of the Delaware General Corporation Law (as amended, the
“DGCL”), Purchaser’s Organizational Documents or any Contract to which Purchaser is a party. None of the
outstanding Purchaser Securities has been issued in violation of any applicable securities Laws
(b) Prior
to giving effect to the Merger, Merger Sub will be authorized to issue 1,000 shares of Merger Sub Common Shares, of which 1,000 shares
will be issued and outstanding, and all of which will be owned by the Purchaser. Prior to giving effect to the transactions contemplated
by this Agreement, other than Merger Sub, Purchaser does not have any Subsidiaries or own any equity interests in any other Person.
(c) Except
as set forth in Schedule 3.5(a) or Schedule 3.5(c) there are no (i) outstanding options, warrants, puts, calls, convertible
securities, preemptive or similar rights, (ii) bonds, debentures, notes or other Indebtedness having general voting rights or that are
convertible or exchangeable into securities having such rights or (iii) subscriptions or other rights, agreements, arrangements, Contracts
or commitments of any character (other than this Agreement and the Ancillary Documents), (A) relating to the issued or unissued shares
of Purchaser or (B) obligating Purchaser to issue, transfer, deliver or sell or cause to be issued, transferred, delivered, sold or repurchased
any options or shares or securities convertible into or exchangeable for such shares, or (C) obligating Purchaser to grant, extend or
enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment for such capital shares.
Other than the Redemption or as expressly set forth in this Agreement, there are no outstanding obligations of Purchaser to repurchase,
redeem or otherwise acquire any shares of Purchaser or to provide funds to make any investment (in the form of a loan, capital contribution
or otherwise) in any Person. Except as set forth in Schedule 3.5(c), there are no stockholders agreements, voting trusts or other
agreements or understandings to which Purchaser is a party with respect to the voting of any shares of Purchaser.
(d) All
Indebtedness of Purchaser as of the date of this Agreement is disclosed on Schedule 3.5(d). No Indebtedness of Purchaser contains
any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by Purchaser or (iii) the ability
of Purchaser to grant any Lien on its properties or assets.
(e) Since
the date of formation of Purchaser, and except as contemplated by this Agreement, Purchaser has not declared or paid any distribution
or dividend in respect of its shares and has not repurchased, redeemed or otherwise acquired any of its shares, and Purchaser’s
board of directors has not authorized any of the foregoing.
3.6 SEC
Filings and Purchaser Financials.
(a) The
Purchaser, since the IPO, has filed all forms, reports, schedules, statements, registration statements, prospectuses and other documents
required to be filed or furnished by the Purchaser with the SEC under the Securities Act and/or the Exchange Act, together with any amendments,
restatements or supplements thereto, and will file all such forms, reports, schedules, statements and other documents required to be filed
subsequent to the date of this Agreement. Except to the extent available on the SEC’s web site through EDGAR, the Purchaser has
delivered to the Company copies in the form filed with the SEC of all of the following: (i) the Purchaser’s annual reports on Form
10-K for each fiscal year of the Purchaser beginning with the first year the Purchaser was required to file such a form, (ii) the Purchaser’s
quarterly reports on Form 10-Q for each fiscal quarter that the Purchaser filed such reports to disclose its quarterly financial results
in each of the fiscal years of the Purchaser referred to in clause (i) above, (iii) all other forms, reports, registration statements,
prospectuses and other documents (other than preliminary materials) filed by the Purchaser with the SEC since the beginning of the first
fiscal year referred to in clause (i) above (the forms, reports, registration statements, prospectuses and other documents referred to
in clauses (i), (ii) and (iii) above, whether or not available through EDGAR, are, collectively, the “SEC Reports”)
and (iv) all certifications and statements required by (A) Rules 13a-14 or 15d-14 under the Exchange Act, and (B) 18 U.S.C. §1350
(Section 906 of SOX) with respect to any report referred to in clause (i) above (collectively, the “Public Certifications”).
The SEC Reports (x) were prepared in all material respects in accordance with the requirements of the Securities Act and the Exchange
Act, as the case may be, and the rules and regulations thereunder and (y) did not, as of their respective effective dates (in the case
of SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and at the time they were filed
with the SEC (in the case of all other SEC Reports) contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were
made, 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 any SEC Reports. None of the SEC Reports filed on or prior to the date of this Agreement is subject to ongoing
SEC review or investigation as of the date of this Agreement. The Public Certifications are each true as of their respective dates of
filing. As used in this Section 3.6, the term “file” shall be broadly construed to include any manner permitted by SEC
rules and regulations in which a document or information is furnished, supplied or otherwise made available to the SEC. As of the date
of this Agreement, (A) the Purchaser Public Units, the Purchaser Common Stock and the Purchaser Public Warrants are quoted on the OTC
Markets’ OTCPK, (B) the Purchaser has not received any written deficiency notice from the OTC Markets relating to the continued
listing requirements of such Purchaser Securities, (C) there are no Actions pending or, to the Knowledge of the Purchaser, threatened
against the Purchaser by the Financial Industry Regulatory Authority with respect to any intention by such entity to suspend, prohibit
or terminate the quoting of such Purchaser Securities on the OTC Markets, and (D) such Purchaser Securities are in compliance with all
of the applicable corporate governance rules of the OTC Markets.
(b) The
financial statements and notes of the Purchaser contained or incorporated by reference in the SEC Reports (the “Purchaser
Financials”), fairly present in all material respects the financial position and the results of operations, changes in stockholders’
equity, and cash flows of the Purchaser at the respective dates of and for the periods referred to in such financial statements, all in
accordance with (i) GAAP methodologies applied on a consistent basis throughout the periods involved and (ii) Regulation S-X or Regulation
S-K, as applicable (except as may be indicated in the notes thereto and for the omission of notes and audit adjustments in the case of
unaudited quarterly financial statements to the extent permitted by Regulation S-X or Regulation S-K, as applicable).
(c) Except
as and to the extent reflected or reserved against in the Purchaser Financials, the Purchaser has not incurred any Liabilities or obligations
of the type required to be reflected on a balance sheet in accordance with GAAP that are not adequately reflected or reserved on or provided
for in the Purchaser Financials, other than Liabilities of the type required to be reflected on a balance sheet in accordance with GAAP
that have been incurred since the Purchaser’s formation in the ordinary course of business. All debts and Liabilities, fixed or
contingent, which should be included under U.S. GAAP on a balance sheet are included in all material respects in the Purchaser Financials
as of the date of such Purchaser Financial.
3.7 Absence
of Certain Changes. As of the date of this Agreement, except as set forth in Schedule 3.7, the Purchaser has, (a) since its
formation, conducted no business other than its formation, the public offering of its securities (and the related private offerings),
public reporting and its search for an initial Business Combination as described in the IPO Prospectus (including the investigation of
the Target Companies and the negotiation and execution of this Agreement) and related activities and (b) since December 21, 2021, not
been subject to a Material Adverse Effect on the Purchaser.
3.8 Compliance
with Laws. The Purchaser is, and has since its formation been, in compliance with all Laws applicable to it and the conduct of its
business except for such noncompliance which would not reasonably be expected to have a Material Adverse Effect on the Purchaser, and
the Purchaser has not received written notice alleging any violation of applicable Law in any material respect by the Purchaser. Purchaser
is not under investigation with respect to any violation or alleged violation of, any law, or judgment, order or decree entered by any
court, arbitrator, or Governmental Authority, domestic or foreign, and the Purchaser has not previously received any subpoenas from any
Governmental Authority.
3.9 Actions;
Orders; Permits. There is no pending or, to the Knowledge of the Purchaser, threatened material Action to which the Purchaser is subject
which would reasonably be expected to have a Material Adverse Effect on the Purchaser. There is no material Action that the Purchaser
has pending against any other Person. The Purchaser is not subject to any material Orders of any Governmental Authority, nor are any such
Orders pending. The Purchaser holds all material Permits necessary to lawfully conduct its business as presently conducted, and to own,
lease and operate its assets and properties, all of which are in full force and effect .
3.10 Taxes
and Returns.
(a) The
Purchaser has timely filed, or caused to be timely filed, all material Tax Returns required to be filed by it, which such Tax Returns
are accurate and complete in all material respects, and has paid, collected, or withheld, or caused to be paid, collected, or withheld,
all material Taxes required to be paid, collected, or withheld. The Purchaser has complied with all applicable Laws relating to Taxes.
Schedule 3.10(a) sets forth each jurisdiction where the Purchaser files or is required to file a Tax Return. There are no audits,
examinations, investigations, or other proceedings pending against the Purchaser in respect of any Tax, and the Purchaser has not been
notified in writing of any proposed Tax claims or assessments against the Purchaser. There are no Liens with respect to any Taxes upon
any of the Purchaser’s assets, other than Permitted Liens. The Purchaser has no outstanding waivers or extensions of any applicable
statute of limitations to assess any material amount of Taxes. There are no outstanding requests by the Purchaser for any extension of
time within which to file any Tax Return or within which to pay any Taxes shown to be due on any Tax Return.
(b) Since
the date of its formation, the Purchaser has not (i) changed any Tax accounting methods, policies, or procedures except as required by
a change in Law, (ii) revoked, or amended any material Tax election, (iii) filed any amended Tax Returns or claim for refund or (iv) entered
into any closing agreement affecting or otherwise settled or compromised any material Tax liability or refund.
(c) To
the Knowledge of the Purchaser, there are no facts or circumstances that would reasonably be expected to prevent the Merger from qualifying
as a “reorganization” within the meaning of Section 368(a) of the Code.
3.11 Employees
and Employee Benefit Plans. The Purchaser does not (a) have any paid employees or (b) maintain, sponsor, contribute to or otherwise
have any Liability under, any Benefit Plans.
3.12 Properties.
The Purchaser does not own, license, or otherwise have any right, title, or interest in or to any material Intellectual Property. The
Purchaser does not own or lease any material real property or material Personal Property.
3.13 Material
Contracts.
(a) Except
as set forth on Schedule 3.13(a), other than this Agreement and the Ancillary Documents, there are no Contracts to which the Purchaser
is a party or by which any of its properties or assets may be bound, subject or affected, which (i) creates or imposes a Liability greater
than $50,000, (ii) may not be cancelled by the Purchaser on less than sixty (60) days’ prior notice without payment of a material
penalty or termination fee or (iii) prohibits, prevents, restricts or impairs in any material respect any business practice of the Purchaser
as its business is currently conducted, any acquisition of material property by the Purchaser, or restricts in any material respect the
ability of the Purchaser to engage in business as currently conducted by it or compete with any other Person (each, a “Purchaser
Material Contract”). All Purchaser Material Contracts have been made available to the Company other than those that are
exhibits to the SEC Reports.
(b) With
respect to each Purchaser Material Contract: (i) the Purchaser Material Contract was entered into at arms’ length and in the ordinary
course of business; (ii) the Purchaser Material Contract is legal, valid, binding and enforceable in all material respects against the
Purchaser and, to the Knowledge of the Purchaser, the other parties thereto, and is in full force and effect (except, in each case, as
such enforcement may be limited by the Enforceability Exceptions); (iii) the Purchaser is not in breach or default in any material respect,
and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default in any material
respect by the Purchaser, or permit termination or acceleration by the other party, under such Purchaser Material Contract; and (iv) to
the Knowledge of the Purchaser, no other party to any Purchaser Material Contract is in breach or default in any material respect, and
no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default by such other
party, or permit termination or acceleration by the Purchaser under any Purchaser Material Contract.
3.14 Transactions
with Affiliates. Schedule 3.14 sets forth a true, correct and complete list of the Contracts and arrangements that are in existence
as of the date of this Agreement under which there are any existing or future Liabilities or obligations between the Purchaser and any
(a) present or former director, officer or employee or Affiliate of the Purchaser, or any immediate family member of any of the foregoing,
or (b) record or beneficial owner of more than five percent (5%) of the Purchaser’s outstanding capital stock as of the date hereof.
3.15 Merger
Sub Activities. Since its formation, Merger Sub has not engaged in any business activities other than as contemplated by this Agreement,
does not own directly or indirectly any ownership, equity, profits or voting interest in any Person and has no assets or Liabilities except
those incurred in connection with this Agreement and the Ancillary Documents to which it is a party and the Merger, and, other than this
Agreement and the Ancillary Documents to which it is a party, Merger Sub is not party to or bound by any Contract.
3.16 Investment
Company Act. The Purchaser is not an “investment company” or a Person directly or indirectly “controlled”
by or acting on behalf of an “investment company,” or required to register as an “investment company,” in each
case within the meaning of the Investment Company Act of 1940, as amended.
3.17 Finders
and Brokers. Except as set forth on Schedule 3.17, no broker, finder or investment banker is entitled to any brokerage, finder’s
or other fee or commission from the Purchaser, the Target Companies or any of their respective Affiliates in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the Purchaser.
3.18 Ownership
of Stockholder Exchange Consideration. All shares of Purchaser Common Stock to be issued and delivered to the Company Shareholders
as Stockholder Merger Consideration in accordance with Article I shall be, upon issuance and delivery of such Purchaser Common
Stock, fully paid and non-assessable, free and clear of all Liens, other than restrictions arising from applicable securities Laws, any
applicable Lock-Up Agreement, and any Liens incurred by any Company Shareholder, and the issuance and sale of such Purchaser Common Stock
pursuant hereto will not be subject to or give rise to any preemptive rights or rights of first refusal.
3.19 Certain
Business Practices.
(a) Neither
the Purchaser, nor any of its Representatives acting on its behalf, has (i) used any funds for unlawful contributions, gifts, entertainment
or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials
or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices Act
of 1977 or any other local or foreign anti-corruption or bribery Law, (iii) made any other unlawful payment or (iv) since the formation
of the Purchaser, directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any customer,
supplier, governmental employee or other Person who is or may be in a position to help or hinder the Purchaser or assist it in connection
with any actual or proposed transaction.
(b) The
operations of the Purchaser are and have been conducted at all times in material compliance with money laundering statutes in all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations, or guidelines, issued, administered,
or enforced by any Governmental Authority, and no Action involving the Purchaser with respect to any of the foregoing is pending or, to
the Knowledge of the Purchaser, threatened.
(c) None
of the Purchaser or any of its directors or officers, or, to the Knowledge of the Purchaser, any other Representative acting on behalf
of the Purchaser is currently identified on the specially designated nationals or other blocked person list or otherwise currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”),
and the Purchaser has not, in the last five (5) fiscal years, directly or indirectly, used any funds, or loaned, contributed or otherwise
made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any
other country sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation
of, any U.S. sanctions administered by OFAC.
3.20 Insurance.
Schedule 3.20 lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type
of policy) held by the Purchaser relating to the Purchaser or its business, properties, assets, directors, officers and employees, copies
of which have been provided to the Company. All premiums due and payable under all such insurance policies have been timely paid and the
Purchaser is otherwise in material compliance with the terms of such insurance policies. All such insurance policies are in full force
and effect, and to the Knowledge of the Purchaser, there is no threatened termination of, or material premium increase with respect to,
any of such insurance policies. There have been no insurance claims made by the Purchaser. The Purchaser has each reported to its insurers
all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such
a claim would not be reasonably likely to have a Material Adverse Effect on the Purchaser.
3.21 Purchaser
Trust Account. As of January 31, 2025, the Trust Account had a balance of no less than $264,998.00. Such monies are invested
solely in United States “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act or money
market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act, and held in trust by Continental
Stock Transfer & Trust Company pursuant to the Trust Agreement. The Trust Agreement is valid and in full force and effect and enforceable
in accordance with its terms (subject to the Enforceability Exceptions) and has not been amended or modified.] The Purchaser has performed
all material obligations required to be performed by it to date under, and is not in material default or delinquent in performance or
any other respect (claimed or actual) in connection with the Trust Agreement, and, to the knowledge of the Purchaser, no event has occurred
which, with due notice or lapse of time or both, would constitute such a material default thereunder. As of the date of this Agreement,
there are no claims or proceedings pending with respect to the Trust Account. There are no separate agreements, side letters or other
agreements that would cause the description of the Trust Agreement in the SEC Reports to be inaccurate in any material respect and/or
that would entitle any Person (other than the underwriters of the IPO, Public Stockholders who shall have elected to redeem their Purchaser
Common Stock pursuant to the Purchaser Certificate of Incorporation (or in connection with an extension of Purchaser’s deadline
to consummate a Business Combination) or Governmental Authorities for Taxes) to any portion of the proceeds in the Trust Account. Prior
to the Closing, none of the funds held in the Trust Account may be released except as described in the Trust Agreement. Upon the consummation
of the transactions contemplated hereby, including the distribution of assets from the Trust Account, the Trust Agreement shall terminate
in accordance with its terms.
3.22 Independent
Investigation. The Purchaser has conducted its own independent investigation, review and analysis of the business, results of operations,
prospects, condition (financial or otherwise) or assets of the Target Companies, and acknowledges that it has been provided adequate access
to the personnel, properties, assets, premises, books and records, and other documents and data of the Target Companies for such purpose.
The Purchaser acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions
contemplated hereby, it has relied solely upon its own investigation and the express representations and warranties of the Company set
forth in this Agreement (including the related portions of the Company Disclosure Schedules) and in any certificate delivered to Purchaser
pursuant hereto, and the information provided by or on behalf of the Company for the Registration Statement; and (b) none of the Company
nor its respective Representatives have made any representation or warranty as to the Target Companies, or this Agreement, except as expressly
set forth in this Agreement (including the related portions of the Company Disclosure Schedules) or in any certificate delivered to Purchaser
pursuant hereto, or with respect to the information provided by or on behalf of the Company for the Registration Statement.
Article
IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY, PUBCO AND MERGER SUB
A.
The Company. Except as set forth in the disclosure schedules delivered by the Company to the Purchaser on the date hereof (the
“Company Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers
of this Agreement to which they refer, the Company hereby represents and warrants to the Purchaser, as of the date hereof and as of the
Closing, as follows:
4.1 Organization
and Standing. The Company was formed on January 24, 2018 under Thailand’s Civil and Commercial Code, as amended (the “CCC”),
and is validly existing and in good standing and has all requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted. Each Subsidiary of the Company is a corporation or other entity duly formed, validly
existing and in good standing under the Laws of its jurisdiction of organization and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as now being conducted. Each Target Company is duly qualified or licensed
and in good standing in the jurisdiction in which it is incorporated or registered and in each other jurisdiction where it does business
or operates to the extent that the character of the property owned, or leased or operated by it or the nature of the business conducted
by it makes such qualification or licensing necessary. Schedule 4.1 lists all jurisdictions in which any Target Company is qualified
to conduct business and all names other than its legal name under which any Target Company does business. The Company has provided to
the Purchaser accurate and complete copies of its Organizational Documents and the Organizational Documents of each of its Subsidiaries,
each as amended to date and as currently in effect. No Target Company is in violation of any provision of its Organizational Documents.
4.2 Authorization;
Binding Agreement. The Company has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary
Document to which it is or is required to be a party, to perform the Company’s obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby, subject to obtaining the Required Company Shareholder Approval. The execution and delivery
of this Agreement and each Ancillary Document to which the Company is or is required to be a party and the consummation of the transactions
contemplated hereby and thereby, (a) have been duly and validly authorized by the Company’s board of directors in accordance with
the Company’s Organizational Documents, the CCC, any other applicable Law or any Contract to which the Company or any of its stockholders
is a party or by which it or its securities are bound and (b) other than the Required Company Shareholder Approval, no other corporate
proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document
to which it is a party or to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary
Document to which the Company is or is required to be a party shall be when delivered, duly and validly executed and delivered by the
Company and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other parties
hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to the Enforceability Exceptions. The Company’s board of directors, by
resolutions duly adopted at a meeting duly called and held or by action by unanimous written consent in accordance with the Company’s
Organizational Documents (i) determined that this Agreement and the Merger and the other transactions contemplated hereby are advisable,
fair to, and in the best interests of, the Company and its stockholders, (ii) approved this Agreement and the Merger and the other transactions
contemplated by this Agreement in accordance with the CCC, (iii) directed that this Agreement be submitted to the Company’s shareholders
for adoption and (iv) resolved to recommend that the Company Shareholders adopt this Agreement. The Voting Agreements delivered by the
Company include holders of Company Shares representing at least the Required Company Shareholder Approval, and such Voting Agreements
constitute, the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
4.3 Capitalization.
(a) As
of the Effective Date, the Company is authorized to issue (i) 6,900,000 ordinary shares with par value of Thai Baht 10 per share each,
of which 6,900,000 shares are issued and outstanding (the “Company Securities”). As of the Effective Date, all of the issued
and outstanding Company Shares and other equity interests of the Company are set forth on Schedule 4.3(a), along with the beneficial
and record owners thereof, all of which shares and other equity interests are owned free and clear of any Liens other than those imposed
under the Company Charter. All of the outstanding shares and other equity interests of the Company have been duly authorized, are fully
paid and non-assessable and not in violation of any purchase option, right of first refusal, preemptive right, subscription right or any
similar right under any provision of the CCC, any other applicable Law, the Company Charter or any Contract to which the Company is a
party or by which it or its securities are bound. The Company holds no shares or other equity interests of the Company in its treasury.
None of the outstanding shares or other equity interests of the Company were issued in violation of any applicable securities Laws.
(b) Except
as set forth in Schedule 4.3(b), the Company has not adopted any equity incentive plan (the “Company Equity Plan”).
Other than as set forth on Schedule 4.3(b), there are no Company Convertible Securities, or preemptive rights or rights of first
refusal or first offer, nor are there any Contracts, commitments, arrangements or restrictions to which the Company or, to the Knowledge
of the Company, any of its stockholders is a party or bound relating to any equity securities of the Company, whether or not outstanding.
There are no outstanding or authorized equity appreciation, phantom equity or similar rights with respect to the Company. Except as set
forth on Schedule 4.3(b), there are no voting trusts, proxies, stockholder agreements or any other agreements or understandings
with respect to the voting of the Company’s equity interests. Except as set forth in the Company Charter, there are no outstanding
contractual obligations of the Company to repurchase, redeem or otherwise acquire any equity interests or securities of the Company, nor
has the Company granted any registration rights to any Person with respect to the Company’s equity securities. All of the Company’s
securities have been granted, offered, sold and issued in compliance with all applicable securities Laws. Except as set forth on Schedule
4.3(b), as a result of the consummation of the transactions contemplated by this Agreement, no equity interests of the Company are
issuable, and no rights in connection with any interests, warrants, rights, options or other securities of the Company accelerate or otherwise
become triggered (whether as to vesting, exercisability, convertibility or otherwise).
(c) Except
as disclosed in the Company Financials, since January 1, 2025, the Company has not declared or paid any distribution or dividend in respect
of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interests of the Company, and the board of
directors of the Company has not authorized any of the foregoing.
4.4 Subsidiaries.
Schedule 4.4 sets forth the name of each Subsidiary of the Company, and with respect to each Subsidiary (a) its jurisdiction of
organization, (b) its authorized shares or other equity interests (if applicable), (c) the number of issued and outstanding shares or
other equity interests and the record holders and beneficial owners thereof and (d) its Tax election to be treated as a corporate or a
disregarded entity under the Code and any state or applicable non-U.S. Tax laws, if any. All of the outstanding equity securities of each
Subsidiary of the Company are duly authorized and validly issued, fully paid and non-assessable (if applicable), and were offered, sold
and delivered in compliance with all applicable securities Laws, and owned by one or more of the Company or its Subsidiaries free and
clear of all Liens (other than those, if any, imposed by such Subsidiary’s Organizational Documents). There are no Contracts to
which the Company or any of its Affiliates is a party or bound with respect to the voting (including voting trusts or proxies) of the
equity interests of any Subsidiary of the Company other than the Organizational Documents of any such Subsidiary. There are no outstanding
or authorized options, warrants, rights, agreements, subscriptions, convertible securities or commitments to which any Subsidiary of the
Company is a party or which are binding upon any Subsidiary of the Company providing for the issuance or redemption of any equity interests
of any Subsidiary of the Company. There are no outstanding equity appreciation, phantom equity, profit participation or similar rights
granted by any Subsidiary of the Company. No Subsidiary of the Company has any limitation, whether by Contract, Order or applicable Law,
on its ability to make any distributions or dividends to its equity holders or repay any debt owed to another Target Company. Except for
the equity interests of the Subsidiaries listed on Schedule 4.4, the Company does not own or have any rights to acquire, directly
or indirectly, any equity interests of, or otherwise Control, any Person. None of the Company or its Subsidiaries is a participant in
any joint venture, partnership or similar arrangement. There are no outstanding contractual obligations of the Company or its Subsidiaries
to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.
4.5 Governmental
Approvals. Except as otherwise described in Schedule 4.5, no Consent of or with any Governmental Authority on the part of any
Target Company is required to be obtained or made in connection with the execution, delivery or performance by the Company of this Agreement
or any Ancillary Documents or the consummation by the Company of the transactions contemplated hereby or thereby other than (a) such filings
as are expressly contemplated by this Agreement, (b) pursuant to Antitrust Laws, (c) the filing with the SEC of (A) the Registration Statement/Proxy
Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange
Act as may be required in connection with this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby,
(d) filing of the Certificate of Merger or (e) any other consents, approvals, authorizations, designations, declarations, waivers or filings,
the absence of which would not have a Company Material Adverse Effect.
4.6 Non-Contravention.
Except as otherwise described in Schedule 4.6, the execution and delivery by the Company (or any other Target Company, as applicable)
of this Agreement and each Ancillary Document to which any Target Company is or is required to be a party or otherwise bound, and the
consummation by any Target Company of the transactions contemplated hereby and thereby and compliance by any Target Company with any of
the provisions hereof and thereof, will not (a) conflict with or violate any provision of any Target Company’s Organizational Documents,
(b) subject to obtaining the Consents from Governmental Authorities referred to in Section 4.5 hereof, the waiting periods referred
to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any Law,
Order or Consent applicable to any Target Company or any of its material properties or assets, or (c) (i) violate, conflict with or result
in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under,
(iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by
any Target Company under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments
or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of any Target Company under
(other than Permitted Liens), (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person
or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery
schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any
of the terms, conditions or provisions of any Company Material Contract, except in the cases of clauses (b) and (c), as has not been and
would not reasonably be expected to have a Company Material Adverse Effect on any Target Company or its ability to consummate the transactions
contemplated by this Agreement or the Ancillary Documents or to perform such Target Company’s obligations hereunder or thereunder.
4.7 Financial
Statements.
(a) As
used herein, the term “Company Financials” means the (i) audited consolidated financial statements of the Target
Companies on a consolidated basis (including, in each case, any related notes thereto), consisting of the consolidated balance sheets
of the Target Companies as of December 31, 2024 and December 31, 2023, and the related consolidated audited income statements, changes
in stockholder equity and statements of cash flows for the fiscal years then ended, each audited by a PCAOB qualified auditor in accordance
with IFRS and PCAOB standards (the “Audited Company Financials”), and (ii) the Company prepared and auditor
reviewed financial statements, consisting of the consolidated balance sheet of the Target Companies on a consolidated basis as of March
31, 2025 (the “Interim Balance Sheet Date”) and the related consolidated income statement, changes in stockholder
equity and statement of cash flows for the three months then ended. True and correct copies of the Company Financials have been provided
to the Purchaser. The Company Financials (i) accurately reflect the books and records of the Target Companies on a consolidated basis
as of the times and for the periods referred to therein, (ii) were prepared in accordance with IFRS, consistently applied throughout and
among the periods involved (except that the unaudited statements exclude the footnote disclosures and other presentation items required
for IFRS and exclude year-end adjustments which will not be material in amount), (iii) comply in all material respects with all applicable
accounting requirements under the Securities Act and the rules and regulations of the SEC thereunder, and (iv) fairly present in all material
respects the consolidated financial position of the Target Companies on a consolidated basis as of the respective dates thereof and the
consolidated results of the operations and cash flows of the Target Companies for the periods indicated. No Target Company has ever been
subject to the reporting requirements of Sections 13(a) and 15(d) of the Exchange Act.
(b) Each
Target Company maintains accurate books and records reflecting its assets and Liabilities in all material respects, and maintains internal
accounting controls that provide reasonable assurance that (i) such Target Company does not maintain any off-the-book accounts and that
such Target Company’s assets are used only in accordance with such Target Company’s management policies and directives, (ii)
transactions are executed with management’s authorization, (iii) transactions are recorded as necessary to permit preparation of
the financial statements of such Target Company and to maintain accountability for such Target Company’s assets. All of the financial
books and records of the Target Companies are complete and accurate in all material respects and have been maintained in the ordinary
course consistent with past practice and in accordance with applicable Laws. No Target Company has been subject to or involved in any
material fraud that involves management or other employees who have a significant role in the internal controls over financial reporting
of any Target Company. In the past five (5) years, no Target Company or its Representatives has received any written complaint, allegation,
assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of any Target Company or its internal
accounting controls, including any material written complaint, allegation, assertion or claim that any Target Company has engaged in questionable
accounting or auditing practices.
(c) The
Target Companies do not have any Indebtedness other than the Indebtedness set forth on Schedule 4.7(c), which schedule sets for
the amounts (including principal and any accrued but unpaid interest or other obligations) with respect to such Indebtedness. Except as
disclosed on Schedule 4.7(c), no Indebtedness of any Target Company contains any restriction upon (i) the prepayment of any of
such Indebtedness, (ii) the incurrence of Indebtedness by any Target Company, or (iii) the ability of the Target Companies to grant any
Lien on their respective properties or assets.
(d) Except
as set forth on Schedule 4.7(d), no Target Company is subject to any Liabilities or obligations (whether or not required to be
reflected on a balance sheet prepared in accordance with IFRS), except for those that are either (i) adequately reflected or reserved
on or provided for in the consolidated balance sheet of the Company and its Subsidiaries as of the Interim Balance Sheet Date contained
in the Company Financials or (ii) not material and that were incurred after the Interim Balance Sheet Date in the ordinary course of business
consistent with past practice (other than Liabilities for breach of any Contract or violation of any Law).
(e) All
financial projections with respect to the Target Companies that were delivered by or on behalf of the Company to the Purchaser or its
Representatives were prepared in good faith using assumptions that the Company believes to be reasonable.
(f) All
accounts, notes and other receivables, whether or not accrued, and whether or not billed, of the Target Companies (the “Accounts
Receivable”) arose from sales actually made or services actually performed in the ordinary course of business and represent
valid obligations to a Target Company arising from its business. None of the Accounts Receivable are subject to any right of recourse,
defense, deduction, return of goods, counterclaim, offset, or set off on the part of the obligor in excess of any amounts reserved therefore
on the Company Financials. All of the Accounts Receivable are, to the Knowledge of the Company, fully collectible according to their terms
in amounts not less than the aggregate amounts thereof carried on the books of the Target Companies (net of reserves) within ninety (90)
days.
4.8 Absence
of Certain Changes. Except as set forth on Schedule 4.8, since January 1, 2025, each Target Company has (a) conducted its business
only in the ordinary course of business consistent with past practice, (b) not been subject to a Material Adverse Effect and (c) has not
taken any action or committed or agreed to take any action that would be prohibited by Section 5.2(b) (without giving effect to
Schedule 5.2) if such action were taken on or after the date hereof without the consent of the Purchaser.
4.9 Compliance
with Laws. Since January 24, 2019, no Target Company is or has been in material conflict or material non-compliance with, or in material
default or violation of, nor has any Target Company received, since January 1, 2019, any written or, to the actual Knowledge of the Company
without inquiry, oral notice of any material conflict or non-compliance with, or material default or violation of, any applicable Laws
by which it or any of its properties, assets, employees, business, products or operations are or were bound or affected. For purposes
of this Section 4.9, “material” shall mean material to the Company and its Subsidiaries taken as a whole.
4.10 Company
Permits. Each Target Company holds all Permits necessary to lawfully conduct in all material respects its business as presently conducted;
to own, lease and operate its assets and properties; and to conduct its business as currently conducted (collectively, the “Company
Permits”). The Company has made available to the Purchaser true, correct and complete copies of all material Company Permits.
Except as set forth on Schedule 4.10, all of the Company Permits are in full force and effect, and no suspension or cancellation
of any of the Company Permits is pending or, to the Company’s knowledge, threatened. No Target Company is in violation in any material
respect of the terms of any Company Permit, and no Target Company has received any written notice of any Actions relating to the revocation
or modification of any Company Permit.
4.11 Litigation.
Except as described on Schedule 4.11, there is no (a) Action of any nature currently pending or, to the Company’s Knowledge,
threatened in writing, and no such Action has been brought by the Company in the past five (5) years; or (b) Order now, to the Company’s
knowledge, pending, or outstanding or that was rendered by a Governmental Authority in the past five (5) years, in either case of (a)
or (b) by or against any Target Company, or to the Company’s knowledge, by or against its current or former directors, officers
or equity holders (provided, that any litigation involving the directors, officers or equity holders of a Target Company must be directly
related to their service as a director, officer or equity holder of the Target Company, its business, equity securities or assets). The
items listed on Schedule 4.11, if finally determined adversely to the Target Companies, will not have, either individually or in
the aggregate, a Material Adverse Effect upon any Target Company. In the past five (5) years, to the Company’s Knowledge, none of
the current or former officers or directors of any Target Company has been charged with, indicted for, arrested for, or convicted of any
felony or any crime involving fraud.
4.12 Material
Contracts.
(a) Schedule
4.12(a) sets forth a true, correct and complete list of, and the Company has made available to the Purchaser true, correct and complete
copies of, each Contract to which any Target Company is a party or by which any Target Company, or any of its properties or assets are
bound or affected (each Contract required to be set forth on Schedule 4.12(a), other than a Company Benefit Plan, a “Company
Material Contract”) that:
(i) contains
covenants that materially limit the ability of any Target Company (A) to compete in any line of business or with any Person or in
any geographic area or to sell, or provide any service or product or solicit any Person, including any non-competition covenants, employee
and customer non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (B) to purchase
or acquire an interest in any other Person;
(ii) involves
any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement relating to the formation,
creation, operation, management or control of any partnership or joint venture;
(iii) involves
any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative
financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever,
whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(iv) evidence
of Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any Target Company having an outstanding principal
amount in excess of $25,000;
(v) involves
the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $250,000
(other than in the ordinary course of business consistent with past practice) or shares or other equity interests of any Target Company
or another Person;
(vi) relates
to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity
or its business or material assets or the sale of any Target Company, its business or material assets;
(vii) by
its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Target Companies under such Contract
or Contracts of at least $25,000 per year or $100,000 in the aggregate;
(viii) is
with any Top Customer or Top Supplier;
(ix) obligates
the Target Companies to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess
of $100,000;
(x) is
between any Target Company and any directors, officers or employees of a Target Company (other than at-will employment arrangements with
employees entered into in the ordinary course of business consistent with past practice), including all non-competition, severance and
indemnification agreements, or any Related Person;
(xi) obligates
the Target Companies to make any capital commitment or expenditure in excess of $100,000 (including pursuant to any joint venture);
(xii) relates
to a material settlement entered into within two (2) years prior to the date of this Agreement or under which any Target Company has outstanding
obligations (other than customary confidentiality obligations);
(xiii) provides
another Person (other than another Target Company or any manager, director or officer of any Target Company) with a power of attorney;
(xiv) relates
to the development, ownership, licensing or use of any Intellectual Property by, to or from any Target Company, other than (A) Off-the-Shelf
Software, (B) employee or consultant invention assignment agreements entered into on a Target Company’s standard form of such agreement,
(C) confidentiality agreements entered into in the ordinary course of business, (D) non-exclusive licenses from customers or distributors
to any Target Company entered into in the ordinary course of business or (E) feedback and ordinary course trade name or logo rights that
are not material to any Target Company;
(xv) that
will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed
by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities
Act as if the Company was the registrant; or
(xvi) is
otherwise material to the Company and its Subsidiaries taken as a whole and not described in clauses (i) through (xv) above.
(b) Except
as disclosed in Schedule 4.12(b), with respect to each Company Material Contract: (i) such Company Material Contract is valid and
binding and enforceable in all respects against the Target Company party thereto and, to the Knowledge of the Company, each other party
thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions);
(ii) the consummation of the transactions contemplated by this Agreement will not affect the validity or enforceability of any Company
Material Contract; (iii) no Target Company is in breach or default in any material respect, and, to the Knowledge of the Company, no event
has occurred that with the passage of time or giving of notice or both would constitute a material breach or default by any Target Company,
or permit termination or acceleration by the other party thereto, under such Company Material Contract; (iv) to the Knowledge of
the Company, no other party to such Company Material Contract is in breach or default in any material respect, and no event has occurred
that with the passage of time or giving of notice or both would constitute such a material breach or default by such other party, or permit
termination or acceleration by any Target Company, under such Company Material Contract; (v) no Target Company has received written or,
to the Company’s Knowledge, notice of an intention by any party to any such Company Material Contract that provides for a continuing
obligation by any party thereto to terminate such Company Material Contract or amend the terms thereof, other than modifications in the
ordinary course of business that do not adversely affect any Target Company in any material respect; and (vi) no Target Company has waived
any material rights under any such Company Material Contract.
4.13 Intellectual
Property.
(a) Schedule
4.13(a)(i) sets forth: (i) all U.S. and foreign registered Patents, Trademarks, Copyrights and Internet Assets and applications owned
or licensed by a Target Company or otherwise used or held for use by a Target Company in which a Target Company is the owner, applicant
or assignee (“Company Registered IP”), specifying as to each item, as applicable: (A) the nature of the item,
including the title, (B) the owner of the item, (C) the jurisdictions in which the item is issued or registered or in which an application
for issuance or registration has been filed and (D) the issuance, registration or application numbers and dates; and (ii) all material
unregistered Intellectual Property owned or purported to be owned by a Target Company. Schedule 4.13(a)(ii) sets forth all Intellectual
Property licenses, sublicenses and other agreements or permissions (“Company IP Licenses”) (other than “shrink
wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for Software commercially
available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $20,000 per year
(collectively, “Off-the-Shelf Software”), which are not required to be listed, although such licenses are “Company
IP Licenses” as that term is used herein), under which a Target Company is a licensee or otherwise is authorized to use or practice
any Intellectual Property, and describes (A) the applicable Intellectual Property licensed, sublicensed or used and (B) any royalties,
license fees or other compensation due from a Target Company, if any. Each Target Company owns, free and clear of all Liens (other than
Permitted Liens), has valid and enforceable rights in, and has the unrestricted right to use, sell, license, transfer or assign, all Intellectual
Property currently used, licensed or held for use by such Target Company, and previously used or licensed by such Target Company, except
for the Intellectual Property that is the subject of the Company IP Licenses. No item of Company Registered IP that consists of a pending
Patent application fails to identify all pertinent inventors, and for each Patent and Patent application in the Company Registered IP,
the Target Companies have obtained valid assignments of inventions from each inventor. Except as set forth on Schedule 4.13(a)(iii),
all Company Registered IP is owned exclusively by the applicable Target Company without obligation to pay royalties, licensing fees or
other fees, or otherwise account to any third party with respect to such Company Registered IP, and such Target Company has recorded assignments
of all Company Registered IP.
(b) Each
Target Company has a valid and enforceable license to use all Intellectual Property that is the subject of the Company IP Licenses applicable
to such Target Company. The Company IP Licenses include all of the licenses, sublicenses and other agreements or permissions necessary
to operate the Target Companies as presently conducted. Each Target Company has performed all obligations imposed on it in the Company
IP Licenses, has made all payments required to date, and such Target Company is not, nor, to the Knowledge of the Company, is any other
party thereto, in breach or default thereunder, nor has any event occurred that with notice or lapse of time or both would constitute
a default thereunder. The continued use by the Target Companies of the Intellectual Property that is the subject of the Company IP Licenses
in the same manner that it is currently being used is not restricted by any applicable license of any Target Company. All registrations
for Copyrights, Patents, Trademarks and Internet Assets that are owned by or exclusively licensed to any Target Company are valid, in
force and in good standing, with all required fees and maintenance fees having been paid with no Actions pending, and all applications
to register any Copyrights, Patents and Trademarks are pending and in good standing, all without challenge of any kind. No Target Company
is party to any Contract that requires a Target Company to assign to any Person all of its rights in any Intellectual Property developed
by a Target Company under such Contract.
(c) Schedule
4.13(c) sets forth all licenses, sublicenses and other agreements or permissions under which a Target Company is the licensor (each,
an “Outbound IP License”), and for each such Outbound IP License, describes (i) the applicable Intellectual
Property licensed, (ii) the licensee under such Outbound IP License, and (iii) any royalties, license fees or other compensation due to
a Target Company, if any. Each Target Company has performed all obligations imposed on it in the Outbound IP Licenses, and such Target
Company is not, nor, to the Knowledge of the Company, is any other party thereto, in breach or default thereunder, nor has any event occurred
that with notice or lapse of time or both would constitute a default thereunder.
(d) No
Action is pending or, to the Company’s Knowledge, threatened against a Target Company that challenges the validity, enforceability,
ownership, or right to use, sell, license or sublicense, or that otherwise relates to, any Intellectual Property currently owned, licensed,
used or held for use by the Target Companies, nor, to the Knowledge of the Company, is there any reasonable basis for any such Action.
No Target Company has received any written or, to the Knowledge of the Company, oral notice or claim asserting or suggesting that any
infringement, misappropriation, violation, dilution or unauthorized use of the Intellectual Property of any other Person is or may be
occurring or has or may have occurred, as a consequence of the business activities of any Target Company, nor to the Knowledge of the
Company is there a reasonable basis therefor. There are no Orders to which any Target Company is a party or its otherwise bound that (i)
restrict the rights of a Target Company to use, transfer, license or enforce any Intellectual Property owned by a Target Company, (ii)
restrict the conduct of the business of a Target Company in order to accommodate a third Person’s Intellectual Property, or (iii)
other than the Outbound IP Licenses, grant any third Person any right with respect to any Intellectual Property owned by a Target Company.
No Target Company is currently infringing, or has, in the past, infringed, misappropriated or violated any Intellectual Property of any
other Person in any material respect in connection with the ownership, use or license of any Intellectual Property owned or purported
to be owned by a Target Company or, to the Knowledge of the Company, otherwise in connection with the conduct of the respective businesses
of the Target Companies. To the Company’s Knowledge, no third party is currently, or in the past five (5) years has been, infringing
upon, misappropriating or otherwise violating any Intellectual Property owned, licensed by, licensed to, or otherwise used or held for
use by any Target Company (“Company IP”) in any material respect.
(e) All
officers, directors, employees and independent contractors (to the extent any such independent contractor had access to Intellectual Property
of a Target Company) of a Target Company (and each of their respective Affiliates) have assigned to the Target Companies all Intellectual
Property arising from the services performed for a Target Company by such Persons and all such assignments of Company Registered IP have
been recorded. No current or former officers, employees or independent contractors of a Target Company have claimed any ownership interest
in any Intellectual Property owned by a Target Company. To the Knowledge of the Company, there has been no violation of a Target Company’s
policies or practices related to protection of Company IP or any confidentiality or nondisclosure Contract relating to the Intellectual
Property owned by a Target Company. The Company has made available to the Purchaser true and complete copies of all written Contracts
referenced in subsections under which employees and independent contractors assigned their Intellectual Property to a Target Company.
To the Company’s Knowledge, none of the employees of any Target Company is obligated under any Contract, or subject to any Order,
that would materially interfere with the use of such employee’s best efforts to promote the interests of the Target Companies, or
that would materially conflict with the business of any Target Company as presently conducted or contemplated to be conducted. Each Target
Company has taken reasonable security measures in order to protect the secrecy, confidentiality and value of the material Company IP.
(f) To
the Knowledge of the Company, no Person has obtained unauthorized access to third party information and data (including personally identifiable
information or information that can be used to identify a natural person (“personal information”)) in the possession of a
Target Company, nor has there been any other material compromise of the security, confidentiality or integrity of such information or
data, and no written or, to the Knowledge of the Company, oral complaint relating to an improper use or disclosure of, or a breach in
the security of, any such information or data has been received by a Target Company. Each Target Company has complied in all material
respects with all applicable Laws and Contract requirements relating to privacy, personal information protection, and the collection,
processing and use of personal information and its own privacy policies and guidelines, if any, each with respect to the Target Companies’
collection, processing and use of personal information. To the Knowledge of the Company, the operation of the business of the Target Companies
has not and does not violate any right to privacy or publicity of any third person, or constitute unfair competition or trade practices
under applicable Law.
(g) The
consummation of any of the transactions contemplated by this Agreement will not result in the material breach, material modification,
cancellation, termination, suspension of, or acceleration of any payments with respect to, or release of source code because of, (i) any
Contract providing for the license or other use of Intellectual Property owned by a Target Company, or (ii) any Company IP License. Following
the Closing, the Company shall be permitted to exercise, directly or indirectly through its Subsidiaries, all of the Target Companies’
rights under such Contracts or Company IP Licenses to the same extent that the Target Companies would have been able to exercise had the
transactions contemplated by this Agreement not occurred, without the payment of any additional amounts or consideration other than ongoing
fees, royalties or payments which the Target Companies would otherwise be required to pay in the absence of such transactions.
4.14 Taxes
and Returns.
(a) Each
Target Company has or will have timely filed, or caused to be timely filed, all federal, state, local and foreign Tax Returns required
to be filed by it (taking into account all available extensions), which Tax Returns are true, accurate, correct and complete in all material
respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all Taxes required to be paid, collected or
withheld. Each Target Company has complied in all material respects with all applicable Laws relating to Tax.
(b) Schedule
4.14 sets forth each jurisdiction where each Target Company files or is required to file a Tax Return. There is no Action currently
pending or, to the Knowledge of the Company, threatened in writing against a Target Company by a Governmental Authority in a jurisdiction
where the Target Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(c) No
Target Company is being audited by any Governmental Authority or has been notified in writing by any Governmental Authority that any such
audit is contemplated or pending. There are no claims, assessments, audits, examinations, investigations or other Actions pending against
a Target Company in respect of any Tax, and no Target Company has been notified in writing of any proposed Tax claims or assessments against
it (other than, in each case, claims or assessments for which adequate reserves in the Company Financials have been established).
(d) There
are no Liens with respect to any Taxes upon any Target Company’s assets, other than Permitted Liens.
(e) No
Target Company has any outstanding waivers or extensions of any applicable statute of limitations to assess any amount of Taxes. There
are no outstanding requests by a Target Company for any extension of time within which to file any Tax Return or within which to pay any
Taxes shown to be due on any Tax Return.
(f) No
Target Company has made any change in accounting method (except as required by a change in Law) or received a ruling from, or signed an
agreement with, any Governmental Authority that would reasonably be expected to have a material impact on its Taxes following the Closing.
(g) No
Target Company has engaged in any “reportable transaction,” as defined in U.S. Treasury Regulation section 1.6011-4(b)(1).
(h) No
Target Company has any Liability for the Taxes of another Person (other than another Target Company) that are not adequately reflected
in the Company Financials (i) under any applicable Tax Law, (ii) as a transferee or successor, or (iii) by contract or indemnity (excluding
commercial agreements entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes). No Target
Company is a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement,
arrangement or practice (excluding commercial agreements, arrangements or practices entered into in the ordinary course of business the
primary purpose of which is not the sharing of Taxes) with respect to Taxes (including advance pricing agreement, closing agreement or
other agreement relating to Taxes with any Governmental Authority) that will be binding on any Target Company with respect to any period
following the Closing Date.
(i) No
Target Company has requested, or is it the subject of or bound by any private letter ruling, technical advice memorandum, closing agreement
or similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes, nor is any such request outstanding.
(j) No
Target Company: (i) has constituted either a “distributing corporation” or a “controlled corporation” (within
the meaning of Section 355(a)(1)(A) of the Code) in a distribution of securities (to any Person or entity that is not a member of the
consolidated group of which the Company is the common parent corporation) qualifying for, or intended to qualify for, Tax-free treatment
under Section 355 of the Code (A) within the two-year period ending on the date hereof or (B) in a distribution which could otherwise
constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code)
in conjunction with the transactions contemplated by this Agreement; or (ii) is or has ever been (A) a U.S. real property holding corporation
within the meaning of Section 897(c)(2) of the Code, or (B) a member of any consolidated, combined, unitary or affiliated group of corporations
for any Tax purposes other than a group of which the Company is or was the common parent corporation.
(k) To
the Knowledge of the Company, no Target Company is aware of any fact or circumstance that would reasonably be expected to prevent the
Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
4.15 Real
Property. Schedule 4.15 contains a complete and accurate list of all premises currently leased or subleased or otherwise used
or occupied by a Target Company for the operation of the business of a Target Company, and of all current leases, lease guarantees, agreements
and documents related thereto, including all amendments, terminations and modifications thereof or waivers thereto (collectively, the
“Company Real Property Leases”), as well as the current annual rent and term under each Company Real Property
Lease. The Company has provided to the Purchaser a true and complete copy of each of the Company Real Property Leases. The Company Real
Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect, subject to Enforceability
Exceptions. To the Knowledge of the Company, no event has occurred which (whether with or without notice, lapse of time or both or the
happening or occurrence of any other event) would constitute a default on the part of a Target Company or any other party under any of
the Company Real Property Leases, and no Target Company has received notice of any such condition. No Target Company owns or has ever
owned any real property or any interest in real property (other than the leasehold interests in the Company Real Property Leases).
4.16 Personal
Property. Each item of Personal Property which is currently owned, used or leased by a Target Company with a book value or fair market
value of greater than Fifty Thousand Dollars ($50,000) is set forth on Schedule 4.16, along with, to the extent applicable, a list
of lease agreements, lease guarantees, security agreements and other agreements related thereto, including all amendments, terminations
and modifications thereof or waivers thereto (“Company Personal Property Leases”). Except as set forth in Schedule
4.16, all such items of Personal Property are in good operating condition and repair (reasonable wear and tear excepted consistent
with the age of such items) and are suitable for their intended use in the business of the Target Companies. The operation of each Target
Company’s business as it is now conducted is not in any material respect dependent upon the right to use the Personal Property of
Persons other than a Target Company, except for such Personal Property that is owned, leased or licensed by or otherwise contracted to
a Target Company. The Company has provided to the Purchaser a true and complete copy of each of the Company Personal Property Leases.
The Company Personal Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect.
To the Knowledge of the Company, no event has occurred which (whether with or without notice, lapse of time or both or the happening or
occurrence of any other event) would constitute a default on the part of a Target Company or any other party under any of the Company
Personal Property Leases, and no Target Company has received notice of any such condition.
4.17 Title
to and Sufficiency of Assets. Each Target Company has good and marketable title to, or a valid leasehold interest in or right to use,
all of its assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under leasehold interests, (c)
Liens specifically identified on the consolidated balance sheet of the Target Companies as of the Interim Balance Sheet Date and (d) Liens
set forth on Schedule 4.17. The assets (including Intellectual Property rights and contractual rights) of the Target Companies
constitute all of the assets, rights and properties that are used in the operation of the businesses of the Target Companies as it is
now conducted or that are used or held by the Target Companies for use in the operation of the businesses of the Target Companies, and
taken together, are adequate and sufficient for the operation of the businesses of the Target Companies as currently conducted.
4.18 Employee
Matters.
(a) Except
as set forth in Schedule 4.18(a), no Target Company is a party to any collective bargaining agreement or other Contract covering
any group of employees, labor organization or other representative of any of the employees of any Target Company, and the Company has
no Knowledge of any activities or proceedings of any labor union or other party to organize or represent such employees. There has not
occurred or been threatened in writing any strike, slow-down, picketing, work-stoppage, or other similar labor activity with respect to
any such employees. Schedule 4.18(a) sets forth all unresolved labor controversies (including unresolved grievances and age or
other discrimination claims other than any workers’ compensation or unemployment claims), if any, that are pending or threatened
in writing between any Target Company and Persons employed by or providing services as independent contractors to a Target Company. No
current officer or employee of a Target Company has provided any Target Company written or, to the Knowledge of the Company, oral notice
of his or her plan to terminate his or her employment with any Target Company.
(b) Except
as set forth in Schedule 4.18(b), each Target Company (i) is and has been in compliance in all material respects with all applicable
Laws respecting employment and employment practices, terms and conditions of employment, health and safety and wages and hours, and other
Laws relating to discrimination, disability, labor relations, hours of work, payment of wages and overtime wages, pay equity, immigration,
workers compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave, and employee
terminations, and has not received written notice that there is any pending Action involving unfair labor practices against a Target Company,
(ii) is not liable for any material past due arrears of wages or any material penalty for failure to comply with any of the foregoing,
and (iii) is not liable for any material payment to any Governmental Authority with respect to unemployment compensation benefits,
social security or other benefits or obligations for employees, independent contractors or consultants (other than routine payments to
be made in the ordinary course of business and consistent with past practice). Except as set forth in Schedule 4.18(b), there are
no Actions pending or threatened in writing against a Target Company brought by or on behalf of any applicant for employment, any current
or former employee, any Person alleging to be a current or former employee, or any Governmental Authority, relating to any such Law or
regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging any other
discriminatory, wrongful or tortious conduct in connection with the employment relationship.
(c) Schedule
4.18(c) hereto sets forth a complete and accurate list as of the date hereof of all employees of the Target Companies showing for
each as of such date (i) the employee’s name, job title or description, employer, location, salary or hourly rate; and (ii) wages,
bonus, commission or other compensation paid during the fiscal year ending December 31, 2024. Except as set forth on Schedule 4.18(c),
(A) no employee is a party to a written employment Contract with a Target Company that is not terminable “at will,” and (B)
the Target Companies have paid in full to all their employees all wages, salaries, commission, bonuses and other compensation due to their
employees, including overtime compensation, and, except as set forth in Schedule 4.18(c), no Target Company has any obligation
or Liability (whether or not contingent) with respect to severance payments to any such employees under the terms of any written agreement,
or commitment or any applicable Law, custom, trade or practice. Except as set forth in Schedule 4.18(c), each Target Company employee
has entered into the Company’s standard form of employee non-disclosure, inventions and restrictive covenants agreement with a Target
Company (whether pursuant to a separate agreement or incorporated as part of such employee’s overall employment agreement), a copy
of which has been made available to the Purchaser by the Company.
(d) Schedule
4.18(d) contains a list of all independent contractors (including consultants) currently engaged by any Target Company, along with
a description of the general nature of the work performed, date of retention and rate of remuneration, most recent increase (or decrease)
in remuneration and amount thereof, for each such Person. Except as set forth on Schedule 4.18(d), all of such independent contractors
are a party to a written Contract with a Target Company. Except as set forth on Schedule 4.18(d), each such independent contractor
has entered into customary covenants regarding confidentiality and assignment of inventions and copyrights in such Person’s agreement
with a Target Company, a copy of which has been provided to the Purchaser by the Company. To the Company’s knowledge, no material
Company liability exists related to the classification of any individual as an independent contractor who is currently, or within the
last six (6) years has been, engaged by a Target Company. Except as set forth in Schedule 4.18(d), each independent contractor
is terminable on fewer than thirty (30) days’ notice, without any obligation of any Target Company to pay severance or a termination
fee.
4.19 Benefit
Plans.
(a) Set
forth on Schedule 4.19(a) is a true and complete list of each Benefit Plan of a Target Company (each, a “Company Benefit
Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have
not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise
properly footnoted in accordance with GAAP on the Company Financials. No Target Company is or has in the past been a member of a “controlled
group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any Target Company have any Liability with respect
to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(b) Each
Company Benefit Plan is and has been operated at all times in compliance with all applicable Laws in all material respects, including
ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of
the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion
letter) during the period from its adoption to the date of this Agreement and (ii) its related trust has been determined to be exempt
from taxation under Section 501(a) of the Code or the Target Companies have requested an initial favorable IRS determination of qualification
and/or exemption within the period permitted by applicable Law. To the Company’s Knowledge, no fact exists which could adversely
affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With
respect to each Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary thereof)
of a Target Company, the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) all Company Benefit Plan
documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto);
(ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable,
and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three
(3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the
most recent actuarial valuation; and (viii) all material communications with any Governmental Authority within the last three (3) years.
(d) With
respect to each Company Benefit Plan: (i) such Company Benefit Plan has been administered and enforced in all material respects in accordance
with its terms, the Code and ERISA; (ii) no breach of fiduciary duty has occurred; (iii) no Action is pending or threatened in writing
(other than routine claims for benefits arising in the ordinary course of administration); (iv) no prohibited transaction, as defined
in Section 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration
exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under
ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No
Company Benefit Plan is a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan”
(as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise
subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any
Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability
to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Target Company immediately after the
Closing Date. No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute
to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined
in Section 501(c)(9) of the Code.
(f) No
arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because
of the imposition of any excise tax on a payment to such person.
(g) With
respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides
medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other
than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums
under any such plan. Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and
Section 4980B of the Code.
(h) Except
as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents
will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth
on Schedule 4.19(a)); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect
of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other
payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred
any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) All
Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation
or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other
charges or liabilities.
(j) Each
Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing
Date is indicated as such on Schedule 4.19(j). No options or other equity-based awards have been issued or granted by the Company
that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance,
in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance
issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan
that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge
of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company
is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A
of the Code.
4.20 Environmental
Matters. Except as set forth in Schedule 4.20, each Target Company is and has been in compliance in all material respects with
all applicable Environmental Laws. No Target Company has manufactured, treated, stored, disposed of, arranged for or permitted the disposal
of, generated, handled or released any Hazardous Material, or operated any property or facility in a manner that has given or would reasonably
be expected to give rise to any material Liability or obligation under applicable Environmental Laws. To the actual knowledge of the Company
without inquiry, there is not located at any commercial office space leased by a Target Company any (i) underground storage tanks, (ii)
asbestos-containing material, or (iii) equipment containing polychlorinated biphenyls.
4.21 Transactions
with Related Persons. Except as set forth on Schedule 4.21, no Target Company nor any of its Affiliates, nor any officer, director,
manager, employee, trustee or beneficiary of a Target Company or any of its Affiliates, nor any immediate family member of any of the
foregoing (whether directly or indirectly through an Affiliate of such Person) (each of the foregoing, a “Related Person”)
is presently, or in the past two (2) years, has been, a party to any transaction with a Target Company, including any Contract or other
arrangement (a) providing for the furnishing of services by (other than as officers, directors or employees of the Target Company), (b)
providing for the rental of real property or Personal Property from or (c) otherwise requiring payments to (other than for services or
expenses as directors, officers or employees of the Target Company in the ordinary course of business consistent with past practice) any
Related Person or any Person in which any Related Person has an interest as an owner, officer, manager, director, trustee or partner or
in which any Related Person has any direct or indirect interest (other than the ownership of securities representing no more than two
percent (2%) of the outstanding voting power or economic interest of a publicly traded company). Except as set forth on Schedule 4.21,
no Target Company has outstanding any Contract or other arrangement or commitment with any Related Person, and no Related Person owns
any real property or Personal Property, or right, tangible or intangible (including Intellectual Property) which is used in the business
of any Target Company. The assets of the Target Companies do not include any material receivable or other obligation from a Related Person,
and the liabilities of the Target Companies do not include any material payable or other obligation or commitment to any Related Person.
4.22 Insurance.
(a) Schedule
4.22(a) lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy)
held by a Target Company relating to a Target Company or its business, properties, assets, directors, officers and employees, copies of
which have been provided to the Purchaser. All premiums due and payable under all such insurance policies have been timely paid and the
Target Companies are otherwise in material compliance with the terms of such insurance policies. Each such insurance policy (i) is legal,
valid, binding, enforceable and in full force and effect and (ii) will continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the Closing. No Target Company has any self-insurance or co-insurance programs. In the past
five (5) years, no Target Company has received any written notice from, or on behalf of, any insurance carrier relating to or involving
any adverse change or any change other than in the ordinary course of business, in the conditions of insurance, any refusal to issue an
insurance policy or non-renewal of a policy.
(b) Schedule
4.22(b) identifies each individual insurance claim in excess of $50,000 made by a Target Company in the past five (5) years. Each
Target Company has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim,
except where such failure to report such a claim would not be reasonably likely to have a material adverse effect on the Target Companies
as a whole. To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would reasonably be
expected to (with or without notice or lapse of time) give rise to or serve as a basis for the denial of any such insurance claim. In
the three (3) years preceding the date hereof, no Target Company has made any claim against an insurance policy as to which the insurer
is denying coverage.
4.23 Books
and Records. All of the financial books and records of the Target Companies are complete and accurate in all material respects and
have been maintained in the ordinary course of business consistent with past practice and in accordance with applicable Laws.
4.24 Top
Customers and Suppliers. Schedule 4.24 lists, by dollar volume received or paid, as applicable, for each of (a) the twelve
(12) months ended on December 31, 2024 and (b) the period from January 1, 2025 through the Interim Balance Sheet Date, the ten (10) largest
customers of the Target Companies (the “Top Customers”) and the ten largest suppliers of goods or services to
the Target Companies (the “Top Suppliers”), along with the amounts of such dollar volumes. The relationships
of each Target Company with such suppliers and customers are good commercial working relationships and (i) no Top Supplier or Top Customer
within the last twelve (12) months has cancelled or otherwise terminated, or, to the Company’s Knowledge, intends to cancel or otherwise
terminate, any material relationships of such Person with a Target Company, (ii) no Top Supplier or Top Customer has during the last twelve
(12) months decreased materially or threatened in writing to stop, decrease or limit materially, or intends to modify materially its material
relationships with a Target Company or stop, decrease or limit materially its products or services to any Target Company or its usage
or purchase of the products or services of any Target Company, (iii) no Top Supplier or Top Customer has threatened in writing to refuse
to pay any amount due to any Target Company or seek to exercise any remedy against any Target Company, and (iv) no Target Company has
within the past two (2) years been engaged in any material dispute with any Top Supplier or Top Customer.
4.25 Certain
Business Practices.
(a) No
Target Company, nor any of their respective Representatives acting on their behalf has (i) used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign
Corrupt Practices Act of 1977 or any other local or foreign anti-corruption or bribery Law or (iii) made any other unlawful payment. No
Target Company, nor to the Knowledge of the Company, any of their respective Representatives acting on the Target Company’s behalf
has directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any customer, supplier,
governmental employee or other Person who is or may be in a position to help or hinder any Target Company or assist any Target Company
in connection with any actual or proposed transaction.
(b) The
operations of each Target Company are and have been conducted at all times in compliance with money laundering statutes in all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any Governmental Authority, and no Action involving a Target Company with respect to any of the foregoing is pending or
threatened in writing.
(c) No
Target Company or any of their respective directors or officers, or, to the Knowledge of the Company, any other Representative acting
on behalf of a Target Company is currently identified on the specially designated nationals or other blocked person list or otherwise
currently subject to any U.S. sanctions administered by OFAC, and no Target Company has in the last five (5) fiscal years, directly or
indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner or
other Person, in connection with any sales or operations in Cuba, Iran, Syria, Sudan, Myanmar or any other country sanctioned by OFAC
or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered
by OFAC.
4.26 Compliance
with Privacy Laws, Privacy Policies and Certain Contracts.
(a) Except
as set forth on Schedule 4.26(a):
(i) Neither
the Company, nor, the Knowledge of the Company, its officers, directors, managers, employees, agents, subcontractors and vendors to whom
Company has given access to Personal Data, are and have been at all times, in compliance in all material respects with all applicable
Privacy Laws;
(ii) Except
as would not, individually or in the aggregate, have a Material Adverse Effect, to the Knowledge of the Company, the Company has not experienced
any loss, damage or unauthorized access, use, disclosure or modification, or breach of security of Personal Data maintained by or on behalf
of the Company (including, to the Knowledge of the Company, by any agent, subcontractor or vendor of the Company); and
(iii) Except
as would not, individually or in the aggregate, have a Material Adverse Effect, to the Knowledge of the Company, (i) no Person, including
any Governmental Authority, has made any written claim or commenced any Proceeding with respect to any violation of any Privacy Law by
the Company (ii) the Company has not been given written notice of any criminal, civil or administrative violation of any Privacy Law,
in any case including any claim or action with respect to any loss, damage or unauthorized access, use, disclosure, modification, or breach
of security, of Personal Data maintained by or on behalf of the Company (including by any agent, subcontractor or vendor of the Company).
(b) To
the Knowledge of the Company, all activities conducted by the Company with respect to any Personal Data are permitted under the Contracts
relating to Personal Data.
(c) To
the Knowledge of the Company, each Contract between the Company and a customer of the Company contains all the terms and conditions that
the Company is required to include therein under the Company’s Contracts with its vendors and suppliers.
4.27 Investment
Company Act. No Target Company is an “investment company” or a Person directly or indirectly “controlled”
by or acting on behalf of an “investment company,” or required to register as an “investment company,” in each
case within the meaning of the Investment Company Act of 1940, as amended.
4.28 Finders
and Brokers. Except as set forth in Schedule 4.28, no Target Company has incurred or will incur any Liability for any brokerage,
finder’s or other fee or commission in connection with the transactions contemplated hereby.
4.29 Independent
Investigation. The Company has conducted its own independent investigation, review and analysis of the business, results of operations,
prospects, condition (financial or otherwise) or assets of the Purchaser, and acknowledges that it has been provided adequate access to
the personnel, properties, assets, premises, books and records, and other documents and data of the Purchaser for such purpose. The Company
acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated
hereby, it has relied solely upon its own investigation and the express representations and warranties of the Purchaser set forth in Agreement
(including the related portions of the Purchaser Disclosure Schedules) and in any certificate delivered to the Company pursuant hereto;
and (b) neither the Purchaser nor any of its Representatives have made any representation or warranty as to the Purchaser or this Agreement,
except as expressly set forth in this Agreement (including the related portions of the Purchaser Disclosure Schedules) or in any certificate
delivered to the Company pursuant hereto.
4.30 Information
Supplied. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation by reference
in the Registration Statement/Proxy Statement will, when filed, declared effective or first mailed or distributed to the Purchaser’s
Stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they are made, not misleading. None of the information
supplied or to be supplied by the Company expressly for inclusion or incorporation by reference in any of the Signing Press Release, the
Signing Filing, the Closing Press Release and the Closing Filing will, when filed or distributed, as applicable, contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, the Company makes no representation,
warranty or covenant with respect to any information supplied by or on behalf of the Purchaser or its Affiliates, or any information provided
by the Company and modified in any material respect by Purchaser or any of its Affiliates without the Company’s prior written approval.
4.31 Disclosure.
No representations or warranties by the Company in this Agreement (as modified by the Company Disclosure Schedules) or the Ancillary Documents,
(a) contains or will contain any untrue statement of a material fact, or (b) omits or will omit to state, when read in conjunction with
all of the information contained in this Agreement, the Company Disclosure Schedules and the Ancillary Documents, any fact necessary to
make the statements or facts contained therein not materially misleading. Except for the representations and warranties expressly made
by the Company in this Article IV (as modified by the Company Disclosure Schedules) or as expressly set forth in an Ancillary Document,
no Target Company nor any other Person on its behalf makes any express or implied representation or warranty with respect to any of the
Target Companies, the Company Security Holders, the Company Shares, the business of the Target Companies, or the transactions contemplated
by this Agreement or any of the other Ancillary Documents, and the Company hereby expressly disclaims any other representations or warranties,
whether implied or made by any Target Company or any of its Representatives. Except for the representations and warranties expressly made
by the Company in this Article IV (as modified by the Company Disclosure Schedules) or in an Ancillary Document, the Company hereby
expressly disclaims all liability and responsibility for any representation, warranty, projection, forecast, statement or information
made, communicated or furnished in writing to the Purchaser, the Purchaser Representative or any of their respective Representatives (including
any opinion, information, projection or advice that may have been or may be provided to the Purchaser, the Purchaser Representative or
any of their respective Representatives by any Representative of the Company), including any representations or warranties regarding the
probable success or profitability of the businesses of the Target Companies.
B. Pubco
represents and warrants to the Purchaser, the Company and the Sellers, as of the date Pubco executes a Joinder and as of the Closing,
as follows:
4.32 Organization
and Standing. Pubco and Merger Sub are exempted companies duly incorporated, validly existing and in good standing under the Laws
of the Cayman Islands. Each of Pubco and Merger Sub has all requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted. Each of Pubco and Merger Sub is duly qualified or licensed and in good standing to
do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification or licensing necessary. Pubco has heretofore made available to Purchaser and the Company accurate
and complete copies of the Organizational Documents of Pubco and Merger Sub, each as currently in effect. Neither Pubco nor Merger Sub
is in violation of any provision of its Organizational Documents in any material respect.
4.33 Authorization;
Binding Agreement. Subject to filing the Pubco A&R Memorandum and Articles, each of Pubco and Merger Sub has all requisite corporate
power and authority to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement
and each Ancillary Document to which it is a party and the consummation of the transactions contemplated hereby and thereby have been
duly and validly authorized by the board of directors and shareholders of Pubco and Merger Sub and no other corporate proceedings, other
than as expressly set forth elsewhere in this Agreement (including the filing of the Pubco A&R Memorandum and Articles), on the part
of Pubco or Merger Sub are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it
is a party or to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to
which Pubco or Merger Sub is a party has been or shall be when delivered, duly and validly executed and delivered by such Party and, assuming
the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties hereto and thereto,
constitutes, or when delivered shall constitute, the valid and binding obligation of such Party, enforceable against such Party in accordance
with its terms, subject to the Enforceability Exceptions.
4.34 Governmental
Approvals. No Consent of or with any Governmental Authority, on the part of Pubco or Merger Sub is required to be obtained or made
in connection with the execution, delivery or performance by such Party of this Agreement and each Ancillary Document to which it is a
party or the consummation by such Party of the transactions contemplated hereby and thereby, other than (a) pursuant to Antitrust Laws,
(b) such filings as contemplated by this Agreement (including the Pubco A&R Memorandum and Articles), (c) any filings required with
Nasdaq or the SEC with respect to the transactions contemplated by this Agreement, (d) applicable requirements, if any, of the Securities
Act, the Exchange Act, and/ or any state “blue sky” securities Laws, and the rules and regulations thereunder, (e) requirements
under Cayman Law and pursuant to any other applicable Laws, and (f) where the failure to obtain or make such Consents or to make such
filings or notifications, would not reasonably be expected to have a Material Adverse Effect on Pubco.
4.35 Non-Contravention.
The execution and delivery by each of Pubco and Merger Sub of this Agreement and each Ancillary Document to which it is a party, the consummation
by such Party of the transactions contemplated hereby and thereby, and compliance by such Party with any of the provisions hereof and
thereof, will not, subject to the filing of the Pubco A&R Memorandum and Articles, (a) conflict with or violate any provision of such
Party’s Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 4.3 hereof,
and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied,
conflict with or violate any Law, Order or Consent applicable to such Party or any of its properties or assets, or (c) (i) violate, conflict
with or result in a breach of, (ii) constitute a material default (or an event which, with notice or lapse of time or both, would constitute
a material default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the
performance required by such Party under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation
to make payments or provide material compensation under, (vii) result in the creation of any Lien (other than Permitted Liens) upon any
of the properties or assets of such Party under, (viii) give rise to any material obligation to obtain any third party Consent or provide
any notice to any Person or (ix) give any Person the right to declare a material default, exercise any remedy, claim a rebate, chargeback,
penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation
or other term under, any of the terms, conditions or provisions of, any material Contract of such Party, except for any deviations from
any of the foregoing clauses (a), (b) or (c) that would not reasonably be expected to have a Material Adverse Effect on Pubco.
4.36 Capitalization.
Pubco shall be authorized to issue a maximum of 10,000,000 Pubco Ordinary Shares, of which 1 Pubco Ordinary Share will be initially issued
to the Company’s Chief Executive Officer and the balance will be owned by the Company’s shareholders, and (ii) Merger Sub
shall be authorized to issue 1,000 Merger Sub Ordinary Shares, of which 1,000 shares shall be issued and outstanding, and all of which
shall be owned by Pubco. Prior to giving effect to the transactions contemplated by this Agreement, other than Merger Sub, Pubco will
not have any Subsidiaries or own any equity interests in any other Person. Pubco shall qualify as a foreign private issuer pursuant to
Rule 3b-4 of the Exchange Act.
4.37 Ownership of
Exchange Shares. (i) All Exchange Shares to be issued and delivered in accordance with Article II to the Sellers shall be,
upon issuance and delivery of such Exchange Shares, duly authorized and validly issued and fully paid and non-assessable, free and clear
of all Liens, and (ii) upon issuance and delivery of such Exchange Shares each Seller shall have good and valid title to its portion of
such Exchange Shares, in each case of clauses (i) and (ii), other than restrictions arising from applicable securities Laws, the Lock-Up
Agreements, the Seller Registration Rights Agreement, the provisions of this Agreement, and any Liens incurred by the Sellers, and (iii)
the issuance and sale of the Exchange Shares pursuant hereto will not be subject to or give rise to any preemptive rights or rights of
first refusal.
4.38 Pubco and Merger
Sub Activities. Since their formation, Pubco and Merger Sub have not engaged in any business activities other than as contemplated
by this Agreement, do not own, directly or indirectly, any ownership equity, profits or voting interest in any Person (other than Pubco’s
100% ownership of Merger Sub) and have no assets or Liabilities except those incurred in connection with this Agreement and the Ancillary
Documents to which they are a party and the Transactions, and, other than this Agreement and the Ancillary Documents to which they are
a party, Pubco and Merger Sub are not party to or bound by any Contract.
4.39 Finders and Brokers.
No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from Purchaser, Pubco,
the Target Companies or any of their respective Affiliates in connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of Pubco or Merger Sub.
4.40 Investment Company
Act. Pubco is not an “investment company” or, a Person directly or indirectly controlled by or acting on behalf of an
“investment company”, in each case within the meanings of the Investment Company Act.
4.41 Information Supplied.
None of the information supplied or to be supplied by Pubco or Merger Sub in writing expressly for inclusion or incorporation by reference:
(a) in any Current Report on Form 8-K or 6-K, and any exhibits thereto or any other report, form, registration or other filing made with
any Governmental Authority (including the SEC) with respect to the transactions contemplated by this Agreement or any Ancillary Documents;
(b) in the Registration Statement; or (c) in the mailings or other distributions to Purchaser’s or Pubco’s shareholders and/or
prospective investors with respect to the consummation of the transactions contemplated by this Agreement or in any amendment to any of
documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not misleading. None of the information supplied or to be supplied by
Pubco or Merger Sub expressly for inclusion or incorporation by reference in any of the Signing Press Release, the Signing Filing, the
Closing Filing and the Closing Press Release will, when filed or distributed, as applicable, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. Notwithstanding the foregoing, neither Pubco nor Merger Sub makes any representation,
warranty or covenant with respect to any information supplied by or on behalf of Purchaser, the Target Companies, the Sellers or any of
their respective Affiliates.
4.42 Independent
Investigation. Each of Pubco and Merger Sub has conducted its own independent investigation, review and analysis of the business,
results of operations, condition (financial or otherwise) or assets of the Target Companies and Purchaser and acknowledges that it has
been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Target
Companies and Purchaser for such purpose. Each of Pubco and Merger Sub acknowledges and agrees that: (a) in making its decision to enter
into this Agreement and to consummate the transactions contemplated hereby, it has relied solely upon its own investigation and the express
representations and warranties of the Company, the Sellers and Purchaser set forth in this Agreement (including the related portions of
the Company Disclosure Schedules and the Purchaser Disclosure Schedules) and in any certificate delivered to Pubco or Merger Sub pursuant
hereto, and the information provided by or on behalf of the Company, the Sellers or Purchaser for the Registration Statement; and (b)
none of the Company, the Sellers, Purchaser or their respective Representatives have made any representation or warranty as to the Target
Companies, the Sellers, Purchaser or this Agreement, except as expressly set forth in this Agreement (including the related portions of
the Company Disclosure Schedules and the Purchaser Disclosure Schedules) or in any certificate delivered to Pubco or Merger Sub pursuant
hereto.
4.43 No Other Representation.
Except for the representations and warranties expressly made by Pubco and/or Merger Sub in this Article IV or as expressly set
forth in any Ancillary Document, neither Pubco nor Merger Sub nor any other Person on either of their behalves makes any express or implied
representation or warranty with respect to any of Pubco or Merger Sub or their respective business, operations, assets or Liabilities,
or the Transactions contemplated by this Agreement or any Ancillary Documents, and Pubco and Merger Sub each hereby expressly disclaims
any other representations or warranties, whether implied or made by Pubco, Merger Sub or any of their respective Representatives. Except
for the representations and warranties expressly made by Pubco and/or Merger Sub in this Article IV or in an Ancillary Document,
Pubco and Merger Sub hereby expressly disclaim all liability and responsibility for any representation, warranty, projection, forecast,
statement or information made, communicated or furnished (orally or in writing) to the Purchaser, the Target Companies, the Sellers or
any of their respective Representatives (including any opinion, information, projection or advice that may have been or may be provided
to the Purchaser, the Target Companies, the Sellers or any of their respective Representatives by any Representative of Pubco or Merger
Sub), including any representations or warranties regarding the probable success or profitability of the businesses of Pubco or Merger
Sub.
Article
V
COVENANTS
5.1 Access
and Information.
(a) During
the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section
8.1 or the Closing (the “Interim Period”), subject to Section 5.15, the Company shall give, and shall
cause its Representatives to give, the Purchaser and its Representatives, at reasonable times during normal business hours and upon reasonable
intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments,
books and records, financial and operating data and other information (including Tax Returns and Contracts), of or pertaining to the Target
Companies, as the Purchaser or its Representatives may reasonably request regarding the Target Companies and their respective businesses,
assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (including unaudited quarterly
financial statements, including a consolidated quarterly balance sheet and income statement, a copy of each material report, schedule
and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and
independent public accountants’ work papers (subject to the consent or any other conditions required by such accountants, if any))
and cause each of the Company’s Representatives to reasonably cooperate with the Purchaser and its Representatives in their investigation;
provided, however, that the Purchaser and its Representatives shall conduct any such activities in such a manner as not to unreasonably
interfere with the business or operations of the Target Companies; and provided further, the Company shall not be required to provide,
or cause to be provided to, the Purchaser or any of its Representatives any information (i) if and to the extent doing so would (A) violate
any Law to which any Target Company is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract
with such third party, (C) violate any legally-binding obligation of any Target Company with respect to confidentiality, non-disclosure
or privacy or (D) jeopardize protections afforded to any Target Company under the attorney-client privilege or the attorney work product
doctrine; provided that in each case the Target Company shall cooperate with the Purchaser to effect disclosure of such information in
a manner which does not result in such a breach, violation or jeopardization.
(b) During
the Interim Period, subject to Section 5.15, the Purchaser shall give, and shall cause its Representatives to give, the Company
and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access
to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial
and operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director
service agreements), of or pertaining to the Purchaser or its Subsidiaries, as the Company or its Representatives may reasonably request
regarding the Purchaser, its Subsidiaries and their respective businesses, assets, Liabilities, financial condition, prospects, operations,
management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance
sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority
pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent
or any other conditions required by such accountants, if any)) and cause each of the Purchaser’s Representatives to reasonably cooperate
with the Company and its Representatives in their investigation; provided, however, that the Company and its Representatives shall
conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Purchaser or any
of its Subsidiaries.
5.2 Conduct
of Business of the Company.
(a) Unless
the Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim
Period, except as expressly contemplated by this Agreement or the Ancillary Documents or as set forth on Schedule 5.2, the Company
shall, and shall cause its Subsidiaries to, (i) conduct their respective businesses, in all material respects, in the ordinary course
of business consistent with past practice, (ii) comply with all Laws applicable to the Target Companies and their respective businesses,
assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material
respects, their respective business organizations, to keep available the services of their respective managers, directors, officers, employees
and consultants, and to preserve the possession, control and condition of their respective material assets, all as consistent with past
practice.
(b) Without
limiting the generality of Section 5.2(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents
as set forth on Schedule 5.2, during the Interim Period, without the prior written consent of the Purchaser (such consent not to
be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not, except as expressly
contemplated by this Agreement or the Ancillary Documents or as set forth on Schedule 5.2(b):
(iv) amend,
waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law and to effect the transactions
contemplated by this Agreement and the Ancillary Documents;
(v) authorize
for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities
or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities,
including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class
and any other equity-based awards, other than the issuance of Company Shares upon the exercise of Company Warrants or Company Options
or conversion of Company Promissory Notes outstanding as of the date hereof in accordance with their existing terms or pursuant to amendments
necessary to effect the transactions contemplated by this Agreement, or engage in any hedging transaction with a third Person with respect
to such securities;
(vi) split,
combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay
or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity
interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities (except for the repurchase
of Company Common Shares from former employees, non-employee directors and consultants in accordance with agreements as in effect on the
date hereof providing for the repurchase of shares in connection with any termination of service);
(vii) incur,
create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $25,000 individually
or $100,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement or reimbursement of expenses
to employees in the ordinary course of business), or guarantee or endorse any Indebtedness, Liability or obligation of any Person in excess
of $25,000 individually or $100,000 in the aggregate;
(viii) increase
the wages, salaries or compensation of its employees other than in the ordinary course of business, consistent with past practice, and
in any event not in the aggregate by more than five percent (5%), or make or commit to make any bonus payment (whether in cash, property
or securities) other than in the ordinary course of business consistent with past practice, to any employee, or materially increase other
benefits of employees generally other than in the ordinary course of business consistent with past practice, or enter into, establish,
materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or
employee, in each case other than as required by applicable Law, pursuant to the terms of any Company Benefit Plans, pursuant to the terms
of this Agreement or the Ancillary Documents, in the ordinary course of business consistent with past practice, or as required to consummate
the transactions contemplated by this Agreement or the Ancillary Documents;
(ix) make
or rescind any material election relating to Taxes, settle any material claim, action, suit, litigation, proceeding, arbitration, investigation,
audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting
or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(x) transfer
or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered
IP, Company IP Licenses or other Company IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary
course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any
Trade Secrets;
(xi) terminate,
or waive or assign any material right under, any Company Material Contract or enter into any Contract that would be a Company Material
Contract, in any case outside of the ordinary course of business consistent with past practice, other than any termination at the end
of the term of such Company Material Contract pursuant to the terms thereof, or as required to consummate the transactions contemplated
by this Agreement or the Ancillary Documents;
(xii) fail
to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(xiii) establish
any Subsidiary or enter into any new line of business;
(xiv) fail
to use commercially reasonable efforts to keep in force material insurance policies or replacement or revised policies providing insurance
coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which
is currently in effect;
(xv) revalue
any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to
comply with GAAP and after consulting with the Company’s outside auditors;
(xvi) waive,
release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation
relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises
that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a
Target Company or its Affiliates) not in excess of $25,000 individually or $100,000 in the aggregate, or otherwise pay, discharge or satisfy
any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xvii) close
or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xviii) acquire,
including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation,
partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside
the ordinary course of business consistent with past practice;
(xix) make
capital expenditures in excess of $25,000 (individually for any project or set of related projects) or $100,000 in the aggregate other
than pursuant to the terms of a Company Material Contract;
(xx) adopt
a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xxi) voluntarily
incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $25,000 individually or $100,000 in
the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xxii) sell,
lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose
of any material portion of its properties, assets or rights;
(xxiii) enter
into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxiv) take
any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority
to be obtained in connection with this Agreement;
(xxv) accelerate
the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course
of business consistent with past practice;
(xxvi) enter
into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other
than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with
past practice); or
(xxvii) authorize
or agree to do any of the foregoing actions;
provided, that any actions reasonably
taken in good faith by the Company or its Subsidiaries to the extent reasonably believed to be necessary to comply with Laws (including
orders of Governmental Authorities) related to COVID-19 shall be deemed not to constitute a breach of the requirements set forth under
this Section 5.2. The Company shall notify the Purchaser in writing of any such actions taken in accordance with the foregoing proviso
and shall use reasonable best efforts to mitigate any negative effects of such actions on the business of the Target Companies, in consultation
with the Purchaser whenever practicable.
5.3 Conduct
of Business of the Purchaser.
(a) Unless
the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim
Period, except as expressly contemplated by this Agreement or the Ancillary Documents or as set forth on Schedule 5.3, the Purchaser
shall, and shall cause its Subsidiaries to, (i) conduct their respective businesses, in all material respects, in the ordinary course
of business consistent with past practice, (ii) comply with all Laws applicable to the Purchaser and its Subsidiaries and their respective
businesses, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in
all material respects, their respective business organizations, to keep available the services of their respective managers, directors,
officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as
consistent with past practice. Notwithstanding anything to the contrary in this Section 5.3, nothing in this Agreement shall prohibit
or restrict Purchaser from extending, in accordance with Purchaser’s Organizational Documents and the IPO Prospectus, the deadline
by which it must complete its Business Combination (each, an “Extension”).
(b) Without
limiting the generality of Section 5.3(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents
(including as contemplated by any PIPE Investment or a private placement of debt or equity securities, consented to by the Company in
accordance with Section 5.20) or as set forth on Schedule 5.3, during the Interim Period, without the prior written consent
of the Company (such consent not to be unreasonably withheld, conditioned or delayed), the Purchaser shall not, and shall cause its Subsidiaries
to not:
(i) amend,
waive or otherwise change, in any respect, its Organizational Documents except as required by applicable Law;
(ii) authorize
for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities
or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities,
including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and
any other equity-based awards, other than the issuance of Purchaser securities issuable upon conversion or exchange of outstanding Purchaser
securities in accordance with their terms, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split,
combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay
or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares
or other equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur,
create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $25,000 individually
or $100,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability
or obligation of any Person (provided, that this Section 5.3(b)(iv) shall not prevent the Purchaser from borrowing funds necessary to
finance its ordinary course administrative costs and expenses and Expenses incurred in connection with the consummation of the Merger
and the other transactions contemplated by this Agreement (including any PIPE Investment and the reasonable costs and expenses necessary
for one or more Extensions (such expenses, “Extension Expenses”));
(v) make
or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation,
audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting
or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vi) amend,
waive or otherwise change the Trust Agreement in any manner adverse to the Purchaser;
(vii) terminate,
waive or assign any material right under any Purchaser Material Contract or enter into any Contract that would be a Purchaser Material
Contract;
(viii) fail
to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(ix) establish
any Subsidiary or enter into any new line of business;
(x) fail
to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage
with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently
in effect;
(xi) revalue
any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to
comply with GAAP and after consulting the Purchaser’s outside auditors;
(xii) waive,
release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation
relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises
that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the
Purchaser or its Subsidiary) not in excess of $25,000 individually or $100,000 in the aggregate, or otherwise pay, discharge or satisfy
any Actions, Liabilities or obligations, unless such amount has been reserved in the Purchaser Financials;
(xiii) acquire,
including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation,
partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside
the ordinary course of business;
(xiv) make
capital expenditures in excess of $25,000 individually for any project (or set of related projects) or $100,000 in the aggregate (excluding
for the avoidance of doubt, incurring any Expenses);
(xv) adopt
a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization
(other than with respect to the Merger);
(xvi) voluntarily
incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $25,000 individually or $100,000 in
the aggregate (excluding the incurrence of any Expenses) other than pursuant to the terms of a Contract in existence as of the date of
this Agreement or entered into in the ordinary course of business or in accordance with the terms of this Section 5.3 during the
Interim Period;
(xvii) sell,
lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose
of any material portion of its properties, assets or rights;
(xviii) enter
into any agreement, understanding or arrangement with respect to the voting of Purchaser Securities;
(xix) take
any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority
to be obtained in connection with this Agreement; or
(xx) authorize
or agree to do any of the foregoing actions;
provided, that any actions reasonably
taken in good faith by the Purchaser or its Subsidiaries to the extent reasonably believed to be necessary to comply with Laws (including
orders of Governmental Authorities) shall be deemed not to constitute a breach of the requirements set forth under this Section 5.3. The
Purchaser shall notify the Company in writing of any such actions taken in accordance with the foregoing proviso and shall use reasonable
best efforts to mitigate any negative effects of such actions on the Purchaser and its Subsidiaries.
5.4 Annual
and Interim Financial Statements. During the Interim Period, within thirty (30) calendar days following the end of each three-month
quarterly period and each fiscal year, the Company shall deliver to the Purchaser an unaudited consolidated income statement and an unaudited
consolidated balance sheet of the Target Companies for the period from the Interim Balance Sheet Date through the end of such calendar
month, quarterly period or fiscal year and the applicable comparative period in the preceding fiscal year, in each case accompanied by
a certificate of the Chief Financial Officer of the Company to the effect that all such financial statements fairly present the consolidated
financial position and results of operations of the Target Companies as of the date or for the periods indicated, in accordance with GAAP,
subject to year-end audit adjustments and excluding footnotes. From the date hereof through the Closing Date, the Company will also promptly
deliver to the Purchaser copies of any audited consolidated financial statements of the Target Companies that the Target Companies’
certified public accountants may issue. The Company shall use commercially reasonable efforts to deliver the Audited Company Financials
for the year ended December 31, 2024 to the Purchaser by April 1, 2025.
5.5 Purchaser
Public Filings. During the Interim Period, the Purchaser will keep current and timely file all of its public filings with the SEC
and otherwise comply in all material respects with applicable securities Laws and shall use its reasonable best efforts prior to the Closing
to maintain the listing of the Purchaser Public Units, the Purchaser Common Stock and the Purchaser Public Warrants on the OTC Markets;
provided, that the Parties acknowledge and agree that from and after the Closing, the Parties intend to list on Nasdaq only the
Purchaser Common Stock and the Purchaser Public Warrants. The Purchaser shall cause the ticker under which the Purchaser Common Stock
and Purchaser Public Warrants are listed for trading on Nasdaq to be changed to “[TBD]” and have the Purchaser Common Stock
and Purchaser Public Warrants listed for trading with such trading ticker.
5.6 No
Solicitation.
(a) For
purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication
of interest in making an offer or proposal, from any Person or group at any time relating to an Alternative Transaction, and (ii) an “Alternative
Transaction” means (A) with respect to the Company and its Affiliates, a transaction (other than the transactions contemplated
by this Agreement) concerning the sale of (x) all or any material part of the business or assets of the Target Companies (other than in
the ordinary course of business consistent with past practice) or (y) any of the shares or other equity interests or profits of the Target
Companies, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets, merger, consolidation,
issuance of debt securities, management Contract, joint venture or partnership, or otherwise and (B) with respect to the Purchaser and
its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning a Business Combination involving
Purchaser.
(b) During
the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance
of the transactions contemplated hereby, each Party shall not, and shall cause its Representatives to not, without the prior written consent
of the Company and the Purchaser, directly or indirectly, (i) solicit, assist, initiate or facilitate the making, submission or announcement
of, or intentionally encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding such Party or its Affiliates
or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other
than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage
or participate in discussions or negotiations with any Person or group with respect to, or that could reasonably be expected to lead to,
an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal,
(v) negotiate or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to
any Acquisition Proposal, or (vi) release any third Person from, or waive any provision of, any confidentiality agreement to which such
Party is a party.
(c) Each
Party shall notify the others as promptly as practicable (and in any event within 48 hours) in writing of the receipt by such Party or
any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or
negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information
or requests for discussions or negotiations that could reasonably be expected to result in an Acquisition Proposal, and (ii) any request
for non-public information relating to such Party or its Affiliates in connection with any Acquisition Proposal, specifying in each case,
the material terms and conditions thereof and the identity of the party making such inquiry, proposal, offer or request for information.
Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or requests for information.
During the Interim Period, each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any
solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal and shall, and shall direct its Representatives
to, cease and terminate any such solicitations, discussions or negotiations.
5.7 No
Trading. The Company acknowledges and agrees that it is aware, and that the Company’s Affiliates are aware (and each of their
respective Representatives is aware or, upon receipt of any material nonpublic information of the Purchaser, will be advised) of the restrictions
imposed by U.S. federal securities laws and the rules and regulations of the SEC, Nasdaq and the OTC Markets promulgated thereunder or
otherwise (the “Federal Securities Laws”) and other applicable foreign and domestic Laws on a Person possessing
material nonpublic information about a publicly traded company. The Company hereby agrees that, while it is in possession of such material
nonpublic information, it shall not purchase or sell any securities of the Purchaser (other than to engage in the Merger in accordance
with Article I), communicate such information to any third party, take any other action with respect to the Purchaser in violation
of such Laws, or cause or encourage any third party to do any of the foregoing.
5.8 Notification
of Certain Matters. During the Interim Period, each Party shall give prompt notice to the other Parties if such Party or its Affiliates:
(a) fails to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or its Affiliates hereunder
in any material respect; (b) receives any notice or other communication in writing from any third party (including any Governmental Authority)
alleging (i) that the Consent of such third party is or may be required in connection with the transactions contemplated by this Agreement
or (ii) any non-compliance with any Law by such Party or its Affiliates; (c) receives any notice or other communication from any Governmental
Authority in connection with the transactions contemplated by this Agreement; (d) discovers any fact or circumstance that, or becomes
aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would reasonably be expected to cause
or result in any of the conditions to the Closing set forth in Article VII not being satisfied or the satisfaction of those conditions
being materially delayed; or (e) becomes aware of the commencement or threat, in writing, of any Action against such Party or any
of its Affiliates, or any of their respective properties or assets, or, to the Knowledge of such Party, any officer, director, partner,
member or manager, in his, her or its capacity as such, of such Party or of its Affiliates with respect to the consummation of the transactions
contemplated by this Agreement. No such notice shall constitute an acknowledgement or admission by the Party providing the notice regarding
whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties
or covenants contained in this Agreement have been breached.
5.9 Efforts.
(a) Subject
to the terms and conditions of this Agreement, each Party shall use its commercially reasonable efforts, and shall cooperate fully with
the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper
or advisable under applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including the receipt
of all applicable Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of Governmental
Authorities applicable to the transactions contemplated by this Agreement.
(b) In
furtherance and not in limitation of Section 5.9(a), to the extent required under any Laws that are designed to prohibit, restrict
or regulate actions having the purpose or effect of monopolization or restraint of trade (“Antitrust Laws”),
each Party hereto agrees to make any required filing or application under Antitrust Laws, as applicable, at such Party’s sole cost
and expense, with respect to the transactions contemplated hereby as promptly as practicable, to supply as promptly as reasonably practicable
any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other
actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under Antitrust
Laws as soon as practicable, including by requesting early termination of the waiting period provided for under the Antitrust Laws. Each
Party shall, in connection with its efforts to obtain all requisite approvals and authorizations for the transactions contemplated by
this Agreement under any Antitrust Law, use its commercially reasonable efforts to: (i) cooperate in all respects with each other Party
or its Affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any
proceeding initiated by a private Person; (ii) keep the other Parties reasonably informed of any communication received by such Party
or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any communication received
or given in connection with any proceeding by a private Person, in each case regarding any of the transactions contemplated by this Agreement;
(iii) permit a Representative of the other Parties and their respective outside counsel to review any communication given by it to, and
consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any proceeding
by a private Person, with any other Person, and to the extent permitted by such Governmental Authority or other Person, give a Representative
or Representatives of the other Parties the opportunity to attend and participate in such meetings and conferences; (iv) in the event
a Party’s Representative is prohibited from participating in or attending any meetings or conferences, the other Parties shall keep
such Party promptly and reasonably apprised with respect thereto; and (v) use commercially reasonable efforts to cooperate in the filing
of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the transactions contemplated
hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(c) As
soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use (and
shall cause their respective Affiliates to use) their respective commercially reasonable efforts to prepare and file with Governmental
Authorities requests for approval of the transactions contemplated by this Agreement and shall use all commercially reasonable efforts
to have such Governmental Authorities approve the transactions contemplated by this Agreement. Each Party shall give prompt written notice
to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection
with the transactions contemplated by this Agreement, and shall promptly furnish the other Parties with a copy of such Governmental Authority
notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the transactions contemplated
hereby, whether prior to the Closing or after the Closing, each Party shall arrange for Representatives of such Party to be present for
such hearing or meeting. If any objections are asserted with respect to the transactions contemplated by this Agreement under any applicable
Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging
any of the transactions contemplated by this Agreement or any Ancillary Document as violative of any applicable Law or which would otherwise
prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby, the Parties shall
use their commercially reasonable efforts to resolve any such objections or Actions so as to timely permit consummation of the transactions
contemplated by this Agreement and the Ancillary Documents, including in order to resolve such objections or Actions which, in any case
if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated
hereby or thereby. In the event any Action is instituted (or threatened to be instituted) by a Governmental Authority or private Person
challenging the transactions contemplated by this Agreement, or any Ancillary Document, the Parties shall, and shall cause their respective
Representatives to, reasonably cooperate with each other and use their respective commercially reasonable efforts to contest and resist
any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in
effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement or the Ancillary Documents.
(d) Prior
to the Closing, each Party shall use its commercially reasonable efforts to obtain any Consents of Governmental Authorities or other third
Persons as may be necessary for the consummation by such Party or its Affiliates of the transactions contemplated by this Agreement or
required as a result of the execution or performance of, or consummation of the transactions contemplated by, this Agreement by such Party
or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
5.10 Tax
Matters. Each of the Parties shall use its reasonable best efforts to cause the Merger to qualify as a “reorganization”
within the meaning of Section 368(a) of the Code. None of the Parties shall (and each of the Parties shall cause its respective Subsidiaries
not to) take any action, or fail to take any action, that could reasonably be expected to cause the Merger to fail to qualify as a “reorganization”
within the meaning of Section 368(a) of the Code. The Parties intend to report and, except to the extent otherwise required by Law, shall
report, for federal income tax purposes, the Merger as a “reorganization” within the meaning of Section 368(a) of the Code.
5.11 Further
Assurances. The Parties hereto shall further cooperate with each other and use their respective commercially reasonable efforts to
take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on their part under this
Agreement and applicable Laws to consummate the transactions contemplated by this Agreement as soon as reasonably practicable, including
preparing and filing as soon as practicable all documentation to effect all necessary notices, reports and other filings.
5.12 The
Registration Statement.
(a) As
promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the Company, and file with
the SEC a registration statement on Form S-4 or F-4, as appropriate (as amended or supplemented from time to time, and including the Proxy
Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities
Act of the Purchaser Common Stock to be issued under this Agreement as the Exchange Consideration, which Registration Statement will also
contain a proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser
stockholders for the matters to be acted upon at the Purchaser Special Meeting and providing the Public Stockholders an opportunity in
accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their Purchaser Common Stock redeemed (the
“Redemption”) in conjunction with the stockholder vote on the Purchaser Stockholder Approval Matters. The Proxy
Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at a special meeting
of Purchaser stockholders to be called and held for such purpose (the “Purchaser Special Meeting”), in favor
of resolutions approving (i) the adoption and approval of this Agreement and the transactions contemplated hereby or referred to herein,
including the Merger (and, to the extent required, the issuance of any shares in connection with the PIPE Investment), by the holders
of Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents and IPO Prospectus, the Securities Act, the
DGCL and the rules and regulations of the SEC, Nasdaq and the OTC Markets, (ii) the adoption and approval of the Amended Purchaser Articles
and Memorandum of Association, including the change of name of the Purchaser, (iii) adoption and approval of a new equity incentive plan
in substantially the form attached as Exhibit F hereto (the “Incentive Plan”), and which will provide for awards
for a number of shares of Purchaser Common Stock equal to ten percent (10%) of the aggregate number of shares of Purchaser Common Stock
issued and outstanding immediately after the Closing (giving effect to the Redemption), (iv) the appointment of the members of the Post-Closing
Purchaser Board in accordance with Section 5.17 hereof, (v) such other matters as the Company and Purchaser shall hereafter mutually
determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the
approvals described in foregoing clauses (i) through (v), collectively, the “Purchaser Stockholder Approval Matters”),
and (vi) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of Purchaser. If
on the date for which the Purchaser Special Meeting is scheduled, Purchaser has not received proxies representing a sufficient number
of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, Purchaser may make one or more successive
postponements or adjournments of the Purchaser Special Meeting. In connection with the Registration Statement, Purchaser will file with
the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable
proxy solicitation and registration statement rules set forth in the Purchaser’s Organizational Documents, the Securities Act, the
DGCL and the rules and regulations of the SEC, Nasdaq and the OTC Markets. Purchaser shall cooperate and provide the Company (and its
counsel) with a reasonable opportunity to review and comment on the Registration Statement and any amendment or supplement thereto prior
to filing the same with the SEC, and Purchaser shall consider any such comments timely made in good faith. The Company shall provide Purchaser
with such information concerning the Target Companies and their stockholders, officers, directors, employees, assets, Liabilities, condition
(financial or otherwise), business and operations that may be required or appropriate for inclusion in the Registration Statement, or
in any amendments or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances
under which they were made, not materially misleading. Any filing fees (or similar fees) with respect to any regulatory or governmental
approval shall be borne by SPAC.
(b) Purchaser
shall take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and
other applicable Laws in connection with the Registration Statement, the Purchaser Special Meeting and the Redemption. Each of Purchaser
and the Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable
advance notice, available to the Company, Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives
in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Registration
Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it
for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become
false or misleading in any material respect or as otherwise required by applicable Laws. Purchaser shall amend or supplement the Registration
Statement and cause the Registration Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to Purchaser
stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement
and the Purchaser’s Organizational Documents; provided, however, that the Purchaser shall not amend or supplement the Registration
Statement without prior consultation with the Company.
(c) Purchaser,
with the assistance of the other Parties, shall promptly respond to any SEC comments on the Registration Statement and shall otherwise
use its commercially reasonable efforts to cause the Registration Statement to “clear” comments from the SEC and become effective.
Purchaser shall provide the Company with copies of any written comments, and shall inform the Company of any material oral comments, that
Purchaser or its Representatives receive from the SEC or its staff with respect to the Registration Statement, the Purchaser Special Meeting
and the Redemption promptly after the receipt of such comments and shall give the Company and its counsel a reasonable opportunity to
review and comment on any proposed written or material oral responses to such comments, including, to the extent permitted by the SEC,
participation by the Company or its counsel in any discussions or meetings with the SEC, and the Purchaser shall consider any such comments
timely made in good faith under the circumstances.
(d) As
soon as practicable following the Registration Statement “clearing” comments from the SEC and becoming effective, Purchaser
shall distribute the Registration Statement to Purchaser’s stockholders and the Company Shareholders, and, pursuant thereto, shall
call the Purchaser Special Meeting in accordance with the Securities Act for a date no later than thirty (30) days following the effectiveness
of the Registration Statement.
(e) Purchaser
shall comply with all applicable Laws, any applicable rules and regulations of the OTC Markets, Purchaser’s Organizational Documents
and this Agreement in the preparation, filing and distribution of the Registration Statement, any solicitation of proxies thereunder,
the calling and holding of the Purchaser Special Meeting and the Redemption. Purchaser shall apply for, and shall take commercially reasonable
actions to cause, the Purchaser Common Stock to be issued in connection with the Merger to be approved for listing on Nasdaq as of the
Closing.
5.13 Company
Shareholder Approval. As promptly as practicable after the Registration Statement has become effective, the Company will call a meeting
of its stockholders or otherwise solicit written consents in order to obtain the Required Company Shareholder Approval (the “Company
Special Meeting”), and the Company shall use its commercially reasonable efforts to solicit from the Company Shareholders
proxies in favor of the Required Company Shareholder Approval prior to such Company Special Meeting, and to take all other actions necessary
or advisable to secure the Required Company Shareholder Approval, including enforcing the Voting Agreements.
5.14 Public
Announcements.
(a) The
Parties agree that during the Interim Period no public release, filing or announcement concerning this Agreement or the Ancillary Documents
or the transactions contemplated hereby or thereby shall be issued by any Party or any of their Affiliates without the prior written consent
of the Purchaser and the Company (which consent shall not be unreasonably withheld, conditioned or delayed), except as such release or
announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case the applicable Party
shall use commercially reasonable efforts to allow the other Parties reasonable time to comment on, and arrange for any required filing
with respect to, such release or announcement in advance of such issuance.
(b) The
Parties shall mutually agree upon and, as promptly as practicable after the execution of this Agreement (but in any event within four
(4) Business Days thereafter), issue a press release announcing the execution of this Agreement (the “Signing Press Release”).
Promptly after the issuance of the Signing Press Release, the Purchaser shall file a current report on Form 8-K (the “Signing
Filing”) with the Signing Press Release and a description of this Agreement as required by Federal Securities Laws, which
the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to
filing (with the Company reviewing, commenting upon and approving such Signing Filing in any event no later than the third (3rd)
Business Day after the execution of this Agreement); provided that the Purchaser provides the Company with a reasonable amount of time
to complete such review, comment and approval prior to the third (3rd) Business Day after the date thereof. The Parties shall mutually
agree upon and, as promptly as practicable after the Closing (but in any event within four (4) Business Days thereafter), issue a press
release announcing the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”).
Promptly after the issuance of the Closing Press Release, the Purchaser shall file a current report on Form 8-K (the “Closing
Filing”) with the Closing Press Release and a description of the Closing as required by Federal Securities Laws which the
Seller Representative and the Purchaser Representative shall review, comment upon and approve (which approval shall not be unreasonably
withheld, conditioned or delayed) prior to filing. In connection with the preparation of the Signing Press Release, the Signing Filing,
the Closing Filing, the Closing Press Release, or any other report, statement, filing notice or application made by or on behalf of a
Party to any Governmental Authority or other third party in connection with the transactions contemplated hereby, each Party shall, upon
request by any other Party, furnish the Parties with all information concerning themselves, their respective directors, officers and equity
holders, and such other matters as may be reasonably necessary or advisable in connection with the transactions contemplated hereby, or
any other report, statement, filing, notice or application made by or on behalf of a Party to any third party and/ or any Governmental
Authority in connection with the transactions contemplated hereby.
5.15 Confidential
Information.
(a) The
Company and the Seller Representative hereby agrees that during the Interim Period and, in the event that this Agreement is terminated
in accordance with Article VIII, for a period of two (2) years after such termination, they shall, and shall cause their respective
Representatives to: (i) treat and hold in strict confidence any Purchaser Confidential Information, and will not use for any purpose (except
in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, performing their obligations
hereunder or thereunder, enforcing their rights hereunder or thereunder, or in furtherance of their authorized duties on behalf of the
Purchaser or its Subsidiaries), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any
third party any of the Purchaser Confidential Information without the Purchaser’s prior written consent; and (ii) in the event that
the Company, the Seller Representative or any of their respective Representatives, during the Interim Period or, in the event that this
Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination, becomes legally
compelled to disclose any Purchaser Confidential Information, (A) provide the Purchaser to the extent legally permitted with prompt written
notice of such requirement so that the Purchaser or an Affiliate thereof may seek, at Purchaser’s cost, a protective Order or other
remedy or waive compliance with this Section 5.15(a), and (B) in the event that such protective Order or other remedy is not obtained,
or the Purchaser waives compliance with this Section 5.15(a), furnish only that portion of such Purchaser Confidential Information which
is legally required to be provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts to obtain
assurances that confidential treatment will be accorded such Purchaser Confidential Information. In the event that this Agreement is terminated
and the transactions contemplated hereby are not consummated, the Company and the Seller Representative shall, and shall cause their respective
Representatives to, promptly deliver to the Purchaser or destroy (at Purchaser’s election) any and all copies (in whatever form
or medium) of Purchaser Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings
related thereto or based thereon; provided, however, that the Company and the Seller Representative and their respective Representatives
shall be entitled to keep any records required by applicable Law or bona fide record retention policies; and provided, further, that any
Purchaser Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth
in this Agreement.
(b) The
Purchaser hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article
VIII, for a period of two (2) years after such termination, it shall, and shall cause its Representatives to: (i) treat and hold in
strict confidence any Company Confidential Information, and will not use for any purpose (except in connection with the consummation of
the transactions contemplated by this Agreement or the Ancillary Documents, performing its obligations hereunder or thereunder or enforcing
its rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available
to any third party any of the Company Confidential Information without the Company’s prior written consent; and (ii) in the event
that the Purchaser or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance
with Article VIII, for a period of two (2) years after such termination, becomes legally compelled to disclose any Company Confidential
Information, (A) provide the Company to the extent legally permitted with prompt written notice of such requirement so that the Company
may seek, at the Company’s sole expense, a protective Order or other remedy or waive compliance with this Section 5.15(b) and (B)
in the event that such protective Order or other remedy is not obtained, or the Company waives compliance with this Section 5.15(b), furnish
only that portion of such Company Confidential Information which is legally required to be provided as advised in writing by outside counsel
and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Company Confidential
Information. In the event that this Agreement is terminated and the transactions contemplated hereby are not consummated, the Purchaser
shall, and shall cause its Representatives to, promptly deliver to the Company or destroy (at the Purchaser’s election) any and
all copies (in whatever form or medium) of Company Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations
and other writings related thereto or based thereon; provided, however, that the Purchaser and its Representatives shall be entitled to
keep any records required by applicable Law or bona fide record retention policies; and provided, further, that any Company Confidential
Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement.
5.16 Documents
and Information. After the Closing Date, the Purchaser and the Company shall, and shall cause their respective Subsidiaries to, until
the seventh (7th) anniversary of the Closing Date, retain all books, records and other documents pertaining to the business
of the Target Companies in existence on the Closing Date and make the same available for inspection and copying by the Purchaser Representative
during normal business hours of the Company and its Subsidiaries, as applicable, upon reasonable request and upon reasonable notice. No
such books, records or documents shall be destroyed after the seventh (7th) anniversary of the Closing Date by the Purchaser
or its Subsidiaries (including any Target Company) without first advising the Purchaser Representative in writing and giving the Purchaser
Representative a reasonable opportunity to obtain possession thereof.
5.17 Post-Closing
Board of Directors and Executive Officers.
(a) The
Parties shall take all necessary action, including causing the directors of the Purchaser to resign, so that effective as of the Closing,
the Purchaser’s board of directors (the “Post-Closing Purchaser Board”) will consist of five (5) individuals.
Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing Purchaser Board,
one (1) person designated by the Company and Purchaser prior to the Closing that shall qualify as an independent director under Nasdaq
rules (the “Purchaser Director”), one (1) person designated by the Sponsor prior to the Closing that shall qualify
as an independent director under Nasdaq rules (the “Sponsor Director”), and three (3) directors designated by
the Company, at least one (1) of whom shall be required to qualify as an independent director under Nasdaq rules. At or prior to the Closing,
the Purchaser will provide each director with a customary director indemnification agreement, in form and substance reasonably acceptable
to such director of Purchaser. Prior to the mailing of the Proxy Statement, the Purchaser and the Company shall mutually agree to each
director that will serve on the compensation committee, the audit committee and the nominating committee of the Purchaser’s Board
immediately after the Effective Time, based on the qualifications of each director, subject to applicable listing rules of Nasdaq and
applicable Law.
(b) The
Parties shall take all action necessary, including causing the executive officers of Purchaser to resign, so that the individuals serving
as the chief executive officer and chief financial officer, respectively, of Purchaser immediately after the Closing will be the same
individuals (in the same office) as that of the Company immediately prior to the Closing (unless, at its sole discretion, the Company
desires to appoint another qualified person to either such role, in which case, such other person identified by the Company shall serve
in such role).
5.18 Indemnification
of Directors and Officers; Tail Insurance.
(a) The
Parties agree that all rights to exculpation, indemnification and advancement of expenses existing in favor of the current or former directors
and officers of the Purchaser or Merger Sub and each Person who served as a director, officer, member, trustee or fiduciary of another
corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request of the Purchaser or
Merger Sub (the “D&O Indemnified Persons”) as provided in their respective Organizational Documents or under
any indemnification, employment or other similar agreements between any D&O Indemnified Person and the Purchaser or Merger Sub, in
each case as in effect on the date of this Agreement, shall survive the Closing and continue in full force and effect in accordance with
their respective terms to the extent permitted by applicable Law. For a period of six (6) years after the Effective Time, the Purchaser
shall cause the Organizational Documents of the Purchaser and the Surviving Corporation to contain provisions no less favorable with respect
to exculpation and indemnification of and advancement of expenses to D&O Indemnified Persons than are set forth as of the date of
this Agreement in the Organizational Documents of the Purchaser and Merger Sub to the extent permitted by applicable Law. The provisions
of this Section 5.18 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable
by, each of the D&O Indemnified Persons and their respective heirs and representatives.
(b) For
the benefit of the Purchaser’s and Merger Sub’s directors and officers, the Purchaser shall be permitted prior to the Effective
Time to obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period
from and after the Effective Time for events occurring prior to the Effective Time (the “D&O Tail Insurance”) that
is substantially equivalent to and in any event not less favorable in the aggregate than the Purchaser’s existing policy or, if
substantially equivalent insurance coverage is unavailable, the best available coverage. If obtained, the Purchaser shall maintain the
D&O Tail Insurance in full force and effect, and continue to honor the obligations thereunder, and the Purchaser shall timely pay
or caused to be paid all premiums with respect to the D&O Tail Insurance.
5.19 Trust
Account Proceeds; Expenses.
(a) At
least three (3) Business Days prior to the contemplated Closing Date, the Purchaser and Company shall exchange written statements setting
forth complete and accurate schedules of their good faith estimates of all unpaid Expenses and Transaction Expenses, respectively, as
of the Closing Date (the “Expense Statements”).
(b) Upon
satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article 7 and provision of notice thereof
to the Trustee, (a) at the Closing, the Purchaser shall (i) cause the documents, certificates and notices required to be delivered to
the Trustee pursuant to the Trust Agreement to be so delivered, and (ii) make all appropriate arrangements to cause the Trustee to pay
(A) as and when due all amounts, if any, payable pursuant to the Redemption, (B) the amounts due to the underwriters of Purchaser’s
IPO for their deferred underwriting commissions as set forth in the Trust Agreement, and (C) immediately thereafter, pay all remaining
amounts then available in the Trust Account to Purchaser in accordance with the Trust Agreement.
(c) Thereafter,
the Trust Account shall terminate, except as otherwise provided therein. Any remaining cash will be used (i) first, to pay Transaction
Expenses, and then (ii) for working capital and general corporate purposes of the Purchaser and the Surviving Corporation.
5.20 PIPE
Investment. Without limiting anything to the contrary contained herein, and though not a condition to Closing, during the Interim
Period, Purchaser shall use its reasonable efforts to enter into and consummate Subscription Agreements with investors relating to a private
equity investment in Purchaser to purchase Purchaser Common Stock in connection with a private placement, and/or enter into backstop arrangements
with potential investors, in either case on terms mutually agreeable to the Company and Purchaser, acting reasonably (a “PIPE
Investment”), and Purchaser and the Company shall, and shall cause their respective Representatives to, cooperate with each
other and their respective Representatives in connection with such PIPE Investment and use their respective reasonable efforts to cause
such PIPE Investment to occur (including having the Company’s senior management participate in any investor meetings and roadshows
as reasonably requested by Purchaser). The Purchaser shall use its reasonable best efforts to satisfy the conditions of the PIPE Investors’
closing obligations contained in the Subscription Agreements and consummate the transactions contemplated thereby. The Purchaser shall
not terminate, or amend or waive in any manner materially adverse to the Purchaser, any Subscription Agreement without the Company’s
prior written consent (not to be unreasonably withheld, delayed or conditioned), other than (i) as expressly provided for by the terms
of the Subscription Agreements or (ii) to reflect any permitted assignments or transfers of the Subscription Agreements by the applicable
PIPE Investors pursuant to the Subscription Agreements. Each of the Purchaser and, as applicable, the Company, shall, and shall cause
its Affiliates to, use commercially reasonable efforts to avoid being in breach or default under the Subscription Agreements. Additionally,
during the Interim Period, the Purchaser may, but shall not be required to, enter into and consummate additional Subscription Agreements
with additional PIPE Investors, including in the event that there is an actual or threatened material breach or default by a PIPE Investor
under a Subscription Agreement, or the Purchaser reasonably believes in good faith that such PIPE Investor otherwise is not willing or
able to consummate the transactions contemplated thereby upon the satisfaction of the conditions of such PIPE Investor’s closing
obligations thereunder, which additional Subscription Agreements shall become part of the PIPE Investment hereunder; provided, that the
terms of such additional Subscription Agreements shall not, without the Company’s prior written consent (not to be unreasonably
withheld, delayed or conditioned), be on materially less favorable terms to the Purchaser or the Company than those set forth in existing
Subscription Agreements. If the Purchaser elects to seek such additional Subscription Agreements (with, solely with respect to any additional
Subscription Agreements containing terms that are substantially different from the terms of Subscription Agreements then in effect, the
Company’s prior written consent, not to be unreasonably withheld, delayed or conditioned), the Purchaser and the Company shall,
and shall cause their respective Representatives to, cooperate with each other and their respective Representatives in connection with
such additional Subscription Agreements and use their respective reasonable efforts to cause such additional Subscription Agreements to
be executed and the transactions contemplated thereby to occur (including having the Company’s senior management participate in
any investor meetings and roadshows as reasonably requested by the Purchaser). The Purchaser will deliver to the Company true, correct
and complete copies of each Subscription Agreement entered into by the Purchaser and any other Contracts between the Purchaser and PIPE
Investors that could affect the obligation of such PIPE Investors to contribute to the Purchaser their applicable portion of the aggregate
gross proceeds of the PIPE Investment as set forth in the Subscription Agreement of such PIPE Investor. The Company shall not enter into
any Contract with a PIPE Investor during the Interim Period without the prior written consent of the Purchaser, not to be unreasonably
withheld, delayed or conditioned.
5.21
Incentive Equity Plan. Prior to the Closing Date, the Purchaser shall approve and adopt the Incentive Equity Plan in the form attached
hereto as Exhibit F (with such changes as may be agreed by Purchaser and the Company). Within 30 days after the Closing, the Purchaser
shall file a registration statement on Form S-8 (or other applicable form) with respect to the Shares issuable under the Incentive Equity
Plan, and Purchaser shall use reasonable efforts to maintain the effectiveness of such registration statement (and maintain the current
status of the prospectus contained therein) for so long as awards granted pursuant to the Incentive Equity Plan remain outstanding.
Article
VI
NO SURVIVAL
6.1 No
Survival. Representations and warranties of the Company and the Purchaser contained in this Agreement or in any certificate or instrument
delivered by or on behalf of the Company or the Purchaser pursuant to this Agreement shall not survive the Closing, and from and after
the Closing, the Company and the Purchaser and their respective Representatives shall not have any further obligations, nor shall any
claim be asserted or action be brought against the Company or the Purchaser or their respective Representatives with respect thereto.
The covenants and agreements made by the Company and the Purchaser in this Agreement or in any certificate or instrument delivered pursuant
to this Agreement, including any rights arising out of any breach of such covenants or agreements, shall not survive the Closing, except
for those covenants and agreements contained herein and therein that by their terms apply or are to be performed in whole or in part after
the Closing (which such covenants shall survive the Closing and continue until fully performed in accordance with their terms).
Article
VII
CLOSING CONDITIONS
7.1 Conditions
to Each Party’s Obligations. The obligations of each Party to consummate the Merger and the other transactions described herein
shall be subject to the satisfaction or written waiver (where permissible) by the Company and the Purchaser of the following conditions:
(a) Required
Purchaser Stockholder Approval. The Purchaser Stockholder Approval Matters that are submitted to the vote of the stockholders of the
Purchaser at the Purchaser Special Meeting in accordance with the Proxy Statement shall have been approved by the requisite vote of the
stockholders of the Purchaser at the Purchaser Special Meeting in accordance with the Purchaser’s Organizational Documents, applicable
Law and the Proxy Statement (the “Required Purchaser Stockholder Approval”).
(b) Required
Company Shareholder Approval. Written consents representing the requisite vote of the Company Shareholders (including any separate
class or series vote that is required, whether pursuant to the Company’s Organizational Documents, any stockholder agreement or
otherwise) shall have been obtained, as necessary, to authorize, approve and consent to, the execution, delivery and performance of this
Agreement and each of the Ancillary Documents to which the Company is or is required to be a party or bound, and the consummation of the
transactions contemplated hereby and thereby, including the Merger (the “Required Company Shareholder Approval”).
(c) Antitrust
Laws. Any waiting period (and any extension thereof) applicable to the consummation of this Agreement under any Antitrust Laws shall
have expired or been terminated.
(d) Requisite
Regulatory Approvals. All Consents required to be obtained from or made with any Governmental Authority in order to consummate the
transactions contemplated by this Agreement shall have been obtained or made.
(e) Requisite
Consents. The Consents required to be obtained from or made with any third Person (other than a Governmental Authority) in order to
consummate the transactions contemplated by this Agreement that are set forth in Schedule 7.1(e) shall have each been obtained
or made.
(f) No
Adverse Law or Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary,
preliminary or permanent) or Order that is then in effect and which has the effect of making the transactions or agreements contemplated
by this Agreement illegal or which otherwise prevents or prohibits consummation of the transactions contemplated by this Agreement.
(g) Intentionally
Omitted.
(h) Due
Diligence. The Purchaser shall have completed its due diligence through the expiry of the Due Diligence Review Period of the Company
to its satisfaction.
(i) Appointment
to the Board. The members of the Post-Closing Purchaser Board shall have been elected or appointed as of the Closing consistent with
the requirements of Section 5.17.
(j) Registration
Statement. The Registration Statement shall have been declared effective by the SEC and shall remain effective as of the Closing,
and no stop order or similar order shall be in effect with respect to the Registration Statement.
(k) Nasdaq
Listing. The shares of Purchaser Common Stock issued as Exchange Consideration as well as the Company Securities shall have been approved
for listing on Nasdaq, subject to official notice of issuance.
7.2 Conditions
to Obligations of the Company. In addition to the conditions specified in Section 7.1, the obligations of the Company to consummate
the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or written waiver (by the Company)
of the following conditions:
(a) Representations
and Warranties. All of the representations and warranties of the Purchaser set forth in this Agreement and in any certificate delivered
by or on behalf of the Purchaser pursuant hereto shall be true and correct on and as of the date of this Agreement and on and as of the
Closing Date as if made on the Closing Date, except for (i) those representations and warranties that address matters only as of a particular
date (which representations and warranties shall have been accurate as of such date), and (ii) any failures to be true and correct that
(without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect), individually or in the aggregate,
have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the Purchaser.
(b) Agreements
and Covenants. The Purchaser shall have performed in all material respects all of the Purchaser’s obligations and complied in
all material respects with all of the Purchaser’s agreements and covenants under this Agreement to be performed or complied with
by it on or prior to the Closing Date.
(c) No
Purchaser Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Purchaser since the date of
this Agreement which is continuing and uncured.
(d) Closing
Deliveries.
(i) Officer
Certificate. The Purchaser shall have delivered to the Company a certificate, dated the Closing Date, signed by an executive officer
of the Purchaser in such capacity, certifying as to the satisfaction of the conditions specified in Sections 7.2(a), 7.2(b)
and 7.2(c).
(ii) Secretary
Certificate. The Purchaser shall have delivered to the Company a certificate from its secretary or other executive officer certifying
as to, and attaching, (A) copies of the Purchaser’s Organizational Documents as in effect as of the Closing Date (after giving effect
to the Conversion), (B) the resolutions of the Purchaser’s board of directors authorizing and approving the execution, delivery
and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation
of the transactions contemplated hereby and thereby, (C) evidence that the Required Purchaser Stockholder Approval has been obtained and
(D) the incumbency of officers authorized to execute this Agreement or any Ancillary Document to which the Purchaser is or is required
to be a party or otherwise bound.
(iii) Good
Standing. The Purchaser shall have delivered to the Company a good standing certificate (or similar documents applicable for such
jurisdictions) for the Purchaser certified as of a date no earlier than thirty (30) days prior to the Closing Date from the proper Governmental
Authority of the Purchaser’s jurisdiction of organization and from each other jurisdiction in which the Purchaser is qualified to
do business as a foreign entity as of the Closing, in each case to the extent that good standing certificates or similar documents are
generally available in such jurisdictions.
(iv) Registration
Rights Agreement. The Company shall have received a copy of the Registration Rights Agreement, duly executed by the Purchaser.
(v) Representation
and Warranty Insurance. The Purchaser shall have received representation and warranty insurance in an amount customary of a transaction
of this size.
7.3 Conditions
to Obligations of the Purchaser. In addition to the conditions specified in Section 7.1, the obligations of the Purchaser and
Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or written
waiver (by the Purchaser) of the following conditions:
(a) Representations
and Warranties. All of the representations and warranties of the Company set forth in this Agreement and in any certificate delivered
by or on behalf of the Company pursuant hereto shall be true and correct on and as of the date of this Agreement and on and as of the
Closing Date as if made on the Closing Date, except for (i) those representations and warranties that address matters only as of a particular
date (which representations and warranties shall have been accurate as of such date), and (ii) any failures to be true and correct that
(without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect), individually or in the aggregate,
have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the Target Companies, taken
as a whole.
(b) Agreements
and Covenants. The Company shall have performed in all material respects all of its obligations and complied in all material respects
with all of its agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.
(c) No
Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Target Companies taken as a whole since
the date of this Agreement which is continuing and uncured.
(d) Certain
Ancillary Documents. Each Lock-Up Agreement and Non-Competition Agreement shall be in full force and effect in accordance with the
terms thereof as of the Closing.
(e) Closing
Deliveries.
(i) Officer
Certificate. The Purchaser shall have received a certificate from the Company, dated as the Closing Date, signed by an executive
officer of the Company in such capacity, certifying as to the satisfaction of the conditions specified in Sections 7.3(a), 7.3(b)
and 7.3(c)
(ii) Secretary
Certificate. The Company shall have delivered to the Purchaser a certificate executed by the Company’s secretary certifying
as to the validity and effectiveness of, and attaching, (A) copies of the Company’s Organizational Documents as in effect as of
the Closing Date (immediately prior to the Effective Time), (B) the requisite resolutions of the Company’s board of directors authorizing
and approving the execution, delivery and performance of this Agreement and each Ancillary Document to which the Company is or is required
to be a party or bound, and the consummation of the Merger and the other transactions contemplated hereby and thereby, and the adoption
of the Surviving Corporation Organizational Documents, and recommending the approval and adoption of the same by the Company Shareholders
at a duly called meeting of stockholders, (C) evidence that the Required Company Shareholder Approval has been obtained and (D) the incumbency
of officers of the Company authorized to execute this Agreement or any Ancillary Document to which the Company is or is required to be
a party or otherwise bound.
(iii) Good
Standing. The Company shall have delivered to the Purchaser good standing certificates (or similar documents applicable for such
jurisdictions) for each Target Company certified as of a date no earlier than thirty (30) days prior to the Closing Date from the proper
Governmental Authority of the Target Company’s jurisdiction of organization and from each other jurisdiction in which the Target
Company is qualified to do business as a foreign corporation or other entity as of the Closing, in each case to the extent that good standing
certificates or similar documents are generally available in such jurisdictions.
(iv) Certified
Charter. The Company shall have delivered to the Purchaser a copy of the Company Charter, as in effect as of immediately prior
to the Effective Time, certified by the Secretary of State of the State of Delaware as of a date no more than ten (10) Business Days prior
to the Closing Date.
(v) Employment
Agreements. The Purchaser shall have received employment agreements, in each case effective as of the Closing, in form and substance
reasonably acceptable to the Company and the Purchaser, between each of the persons set forth Schedule 7.3(e)(v) hereto and the
applicable Target Company or the Purchaser, as noted in Schedule 7.3(e)(v), each such employment agreement duly executed by the
parties thereto.
(vi) The
Company shall have delivered to the Purchaser copies of the Lock-up Agreement duly executed by the Significant Company Holders.
(vii) The
Company shall have delivered to the Purchaser copies of the Non-Competition Agreements duly executed by each of the Key Management members.
(viii) Transmittal
Documents. The Exchange Agent shall have received from each Company Shareholder the Transmittal Documents, each in form reasonably
acceptable for transfer on the books of the Company.
(ix) The
Purchaser shall have received evidence reasonably acceptable to the Purchaser that the Company shall have terminated, extinguished and
cancelled in full any outstanding unvested Stock Options, unexercised Warrants or commitments therefor.
(x) Resignations.
Subject to the requirements of Section 5.18, the Purchaser shall have received written resignations, effective as of the Closing,
of each of the directors and officers of the Company listed on Schedule 7.3(e)(x) prior to the Closing.
(xi) Termination
of Certain Contracts. The Purchaser shall have received evidence reasonably acceptable to the Purchaser that the Contracts involving
the Target Companies and/or Company Security Holders or other Related Persons set forth on Schedule 7.3(e)(xi) shall have been
terminated with no further obligation or Liability of the Target Companies thereunder.
7.4 Frustration
of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth
in this Article VII to be satisfied if such failure was caused by the failure of such Party or its Affiliates (or with respect
to the Company, any Target Company or Company Shareholder) failure to comply with or perform any of its covenants or obligations set forth
in this Agreement.
Article
VIII
TERMINATION AND EXPENSES
8.1 Termination.
This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing as follows:
(a) by
mutual written consent of the Purchaser and the Company;
(b) by
written notice by the Purchaser or the Company if any of the conditions to the Closing set forth in Article VII have not been satisfied
or waived by December 31, 2025 (the “Outside Date”) (provided, that if Purchaser seeks and obtains one or more
Extensions, Purchaser shall have the right with respect to each extension, by providing written notice thereof to the Company, to extend
the Outside Date for an additional period equal to the shortest of (i) three (3) additional months, (ii) the period ending on the last
date for Purchaser to consummate its Business Combination pursuant to such Extension and (iii) such period as determined by Purchaser);
provided, however, the right to terminate this Agreement under this Section 8.1(b) shall not be available to a Party if the breach
or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the proximate
cause of the failure of the Closing to occur on or before the Outside Date;
(c) by
written notice by either the Purchaser or the Company if a Governmental Authority of competent jurisdiction shall have issued an Order
or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement,
and such Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement
pursuant to this Section 8.1(c) shall not be available to a Party if the failure by such Party or its Affiliates to comply with any provision
of this Agreement has been a substantial cause of such action by such Governmental Authority;
(d) by
written notice by the Company to Purchaser, if (i) there has been a material breach by the Purchaser of any of its representations, warranties,
covenants or agreements contained in this Agreement, or if any representation or warranty of the Purchaser shall have become untrue or
inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.2(a) or Section 7.2(b) to
be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii)
the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of
such breach or inaccuracy is provided to the Purchaser or (B) the Outside Date; provided, that the Company shall not have the right to
terminate this Agreement pursuant to this Section 8.1(d) if at such time the Company is in material uncured breach of this Agreement;
(e) by
written notice by the Purchaser to the Company, if (i) there has been a material breach by the Company of any of its representations,
warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become
untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.3(a) or Section 7.3(b)
to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and
(ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice
of such breach or inaccuracy is provided to the Company or (B) the Outside Date; provided, that the Purchaser shall not have the right
to terminate this Agreement pursuant to this Section 8.1(e) if at such time the Purchaser is in material uncured breach of this Agreement;
(f) by
written notice by the Purchaser to the Company, if there shall have been a Material Adverse Effect on the Target Companies taken as a
whole following the date of this Agreement which is uncured for at least twenty (20) days after written notice of such Material Adverse
Effect is provided by the Purchaser to the Company;
(g) by
written notice by either the Purchaser or the Company to the other, if the Purchaser Special Meeting is held (including any adjournment
or postponement thereof) and has concluded, the Purchaser’s stockholders have duly voted, and the Required Purchaser Stockholder
Approval was not obtained;
(h) by
written notice by the Purchaser to the Company, if the Purchaser has not received the opinion of its financial advisor that the Merger
and the other transactions contemplated hereby are fair to the Company and its stockholders from a financial point of view within 30 days
after the date of this Agreement; or
(i) by
written notice by the Purchaser to the Company, if the Company shall fail to deliver the Audited Company Financials for the year ended
December 31, 2024 to the Purchaser by June 30, 2025.
(j) by
written notice by the Company to the Purchaser, if (i) a Registration Statement on Form F-4 and relevant applications to Nasdaq for approval
to uplift the shares from OTC Markets’ OTCPK have not been submitted by the Purchaser within 60 days after the receipt of the Audited
Company Financials, or (ii) an approval has not been obtain from Nasdaq to uplift the shares of the Surviving Company OTC Markets’
OTCPK before Closing.
8.2 Effect
of Termination. This Agreement may only be terminated in the circumstances described in Section 8.1 and pursuant to a written
notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination, including the
provision of Section 8.1 under which such termination is made. In the event of the valid termination of this Agreement pursuant
to Section 8.1, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party or any of
their respective Representatives, and all rights and obligations of each Party shall cease, except: (i) Sections 5.14, 5.15,
8.3, , 9.1, Article XI and this Section 8.2 shall survive the termination of this Agreement, and (ii) nothing herein shall
relieve any Party from Liability for any willful breach of any representation, warranty, covenant or obligation under this Agreement or
any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (i) and (ii) above,
subject to Section 9.1). Without limiting the foregoing, and except as provided in Sections 8.3 and this Section 8.2 (but
subject to Section 9.1) and subject to the right to seek injunctions, specific performance or other equitable relief in accordance
with Section 10.7, the Parties’ sole right prior to the Closing with respect to any breach of any representation, warranty,
covenant or other agreement contained in this Agreement by another Party or with respect to the transactions contemplated by this Agreement
shall be the right, if applicable, to terminate this Agreement pursuant to Section 8.1.
8.3 Fees
and Expenses. Subject to Sections 5.3, Error! Reference source not found. 9.1, and Article XI all Expenses
incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such expenses.
As used in this Agreement, “Expenses” shall include all out-of-pocket expenses (including all fees and expenses
of counsel, accountants, investment bankers, financial advisors, financing sources, experts and consultants to a Party hereto or any of
its Affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution
or performance of this Agreement or any Ancillary Document related hereto and all other matters related to the consummation of this Agreement.
With respect to the Purchaser, Expenses shall include any and all expenses, filing fees, costs and deferred expenses (including fees or
commissions payable to the underwriters and any legal fees) of the IPO upon consummation of a Business Combination and any Extension Expenses.
Article
IX
WAIVERS AND RELEASES
9.1 Waiver
of Claims Against Trust. Reference is made to the IPO Prospectus. The Company and the Seller Representative each hereby represents
and warrants that it has read the IPO Prospectus and understands that Purchaser has established the Trust Account containing the proceeds
of the IPO and the overallotment shares acquired by Purchaser’s underwriters and from certain private placements occurring simultaneously
with the IPO (including interest accrued from time to time thereon) for the benefit of Purchaser’s public stockholders (including
overallotment shares acquired by Purchaser’s underwriters) (the “Public Stockholders”) and that, except
as otherwise described in the IPO Prospectus, Purchaser may disburse monies from the Trust Account only: (a) to the Public Stockholders
in the event they elect to redeem their Purchaser Common Stock in connection with the consummation of its initial business combination
(as such term is used in the IPO Prospectus) (“Business Combination”) or in connection with an amendment to
Purchaser’s Organizational Documents to extend Purchaser’s deadline to consummate a Business Combination, (b) to the Public
Stockholders if the Purchaser fails to consummate a Business Combination within twelve (12) months after the closing of the IPO, subject
to extension, (c) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay for any taxes,
and (d) to Purchaser after or concurrently with the consummation of a Business Combination. For and in consideration of Purchaser entering
into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of
the Company and the Seller Representative hereby agrees on behalf of itself and its Affiliates that, notwithstanding anything to the contrary
in this Agreement, none of the Company or the Seller Representative nor any of their respective Affiliates do now or shall at any time
hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or
make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result
of, in connection with or relating in any way to, this Agreement or any proposed or actual business relationship between Purchaser or
any of its Representatives, on the one hand, and the Company, the Seller Representative or any of their respective Representatives, on
the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of
legal liability (collectively, the “Released Claims”). Each of the Company and the Seller Representative on
behalf of itself and its Affiliates hereby irrevocably waives any Released Claims that any such Party or any of its Affiliates may have
against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations,
contracts or agreements with Purchaser or its Representatives and will not seek recourse against the Trust Account (including any distributions
therefrom) for any reason whatsoever (including for an alleged breach of this Agreement or any other agreement with Purchaser or its Affiliates).
The Company and the Seller Representative each agrees and acknowledges that such irrevocable waiver is material to this Agreement and
specifically relied upon by Purchaser and its Affiliates to induce Purchaser to enter in this Agreement, and each of the Company and the
Seller Representative further intends and understands such waiver to be valid, binding and enforceable against such Party and each of
its Affiliates under applicable Law. To the extent that the Company or the Seller Representative or any of their respective Affiliates
commences any Action based upon, in connection with, relating to or arising out of any matter relating to Purchaser or its Representatives,
which proceeding seeks, in whole or in part, monetary relief against Purchaser or its Representatives, each of the Company and the Seller
Representative hereby acknowledges and agrees that its and its Affiliates’ sole remedy shall be against funds held outside of the
Trust Account and that such claim shall not permit such Party or any of its Affiliates (or any Person claiming on any of their behalves
or in lieu of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein.
In the event that the Company or the Seller Representative or any of their respective Affiliates commences Action based upon, in connection
with, relating to or arising out of any matter relating to Purchaser or its Representatives which proceeding seeks, in whole or in part,
relief against the Trust Account (including any distributions therefrom) or the Public Stockholders, whether in the form of money damages
or injunctive relief, Purchaser and its Representatives, as applicable, shall be entitled to recover from the Company, the Seller Representative
(on behalf of the Company Shareholders) and their respective Affiliates, as applicable, the associated legal fees and costs in connection
with any such Action, in the event Purchaser or its Representatives, as applicable, prevails in such Action. This Section 9.1 shall survive
termination of this Agreement for any reason and continue indefinitely.
Article
X
MISCELLANEOUS
10.1 Notices.
All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when
delivered (i) in person, (ii) by facsimile or other electronic means (including e-mail), with affirmative confirmation of receipt, (iii)
one Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days
after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable Party
at the following addresses (or at such other address for a Party as shall be specified by like notice):
|
If to the Purchaser or Merger Sub at or prior to the Closing, to:
Arogo Capital Acquisition Corp.
848 Brickell Avenue, Penthouse 5
Miami, FL 33131
Attn: Suradech Taweesaengsakulthai
Telephone No.: (786) 442-1482
E-mail: suradech@cho.co.th |
with a copy (which will not constitute notice) to:
Rimon P.C.
1050 Connecticut Avenue, NW Suite 500
Washington, DC 20036
Attn: Debbie A. Klis, Esq.
Facsimile No.: (202) 935-3390
Telephone No.: (202) 935-3390
E-mail: debbie.klis@rimonlaw.com |
|
If to the Purchaser Representative, to:
Singto, LLC
c/o Arogo Capital Acquisition Corp.
848 Brickell Avenue, Penthouse 5
Miami, FL 33131
Attn: Suradech Taweesaengsakulthai
Telephone No.: (786) 442-1482
E-mail: suradech@cho.co.th |
with a copy (which will not constitute notice) to:
Rimon P.C.
1050 Connecticut Avenue, NW Suite 500
Washington, DC 20036
Attn: Debbie A. Klis, Esq.
Facsimile No.: (202) 935-3390
Telephone No.: (202) 935-3390
E-mail: debbie.klis@rimonlaw.com |
|
If to the Company or the Surviving Corporation, to:
Bangkok Tellink Co., Ltd.
89/2 Building 6, 2nd Floor, Room No. 6203
Chaengwattana Road, Thung Song Room
Lak Si Bangkok 10210, Thailand
Attn: Mr. Nusttanakit Sasianon
Telephone No.: 02-191-5555
E-mail: nusttanakit.sa@bangkoktellink.co.th, |
with a copy (which will not constitute notice) to:
Araya & Partners Co., Ltd.
973 President Tower, 6th Floor, Room no. 6G
Ploenchit Road, Lumpini, Pathumwan
Bangkok Thailand 10330
Attn: Phatcharapon Sunlakawit
Telephone No.: (+66) 26560606
Mobile Phone No.: (+66) 650593656
E-mail: phatcharapon@aaplaws.com
|
|
If to the Seller Representative to:
Mr. Nusttanakit Sasianon and Mr. Sawin Laosethakul
c/o Bangkok Tellink Co. Ltd.
89/2 Building 6, 2nd Floor, Room No. 6203
Chaengwattana Road, Thung Song Room
Lak Si Bangkok 10210, Thailand
Telephone No.: 02-191-5555
E-mail: nusttanakit.sa@bangkoktellink.co.th
E-mail: Sawin@S1Winconsultant.com |
with a copy (which will not constitute notice) to:
Araya & Partners Co., Ltd.
973 President Tower, 6th Floor, Room no. 6G
Ploenchit Road, Lumpini, Pathumwan
Bangkok Thailand 10330
Attn: Phatcharapon Sunlakawit
Telephone No.: (+66) 26560606
Mobile Phone No.: (+66) 650593656
E-mail: phatcharapon@aaplaws.com
|
|
If to the Purchaser after the Closing, to:
Bangkok Tellink Co., Ltd.
89/2 Building 6, 2nd Floor, Room No. 6203
Chaengwattana Road, Thung Song Room
Lak Si Bangkok 10210, Thailand
Telephone No.: 02-191-5555
E-mail: nusttanakit.sa@bangkoktellink.co.th
and
the Purchaser Representative (as stated above) |
with a copy (which will not constitute notice) to:
Rimon P.C.
1050 Connecticut Avenue, NW Suite 500
Washington, DC 20036
Attn: Debbie A. Klis, Esq.
Facsimile No.: (202) 935-3390
Telephone No.: (202) 935-3390
E-mail: debbie.klis@rimonlaw.com
and
Araya & Partners Co., Ltd.
973 President Tower, 6th Floor, Room no. 6G
Ploenchit Road, Lumpini, Pathumwan
Bangkok Thailand 10330
Attn: Phatcharapon Sunlakawit
Telephone No.: (+66) 26560606
Mobile Phone No.: (+66) 650593656
E-mail: phatcharapon@aaplaws.com
|
10.2 Binding
Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without
the prior written consent of the Purchaser and the Company (and after the Closing, the Purchaser Representative and the Seller Representative),
and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning Party
of its obligations hereunder.
10.3 Third
Parties. Except for the rights of the D&O Indemnified Persons set forth in Section 5.18, which the Parties acknowledge
and agree are express third party beneficiaries of this Agreement, nothing contained in this Agreement or in any instrument or document
executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed
for the benefit of, any Person that is not a Party hereto or thereto or a successor or permitted assign of such a Party.
10.4 Arbitration.
Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent
injunction or other equitable relief or application for enforcement of a resolution under this Section 10.4, and any dispute to
be determined by the Independent Expert in accordance with Section 1.15) arising out of, related to, or in connection with this
Agreement or the transactions contemplated hereby (a “Dispute”) shall be governed by this Section 10.4. A party
must, in the first instance, provide written notice of any Disputes to the other parties subject to such Dispute, which notice must provide
a reasonably detailed description of the matters subject to the Dispute. The parties involved in such Dispute shall seek to resolve the
Dispute on an amicable basis within twenty (20) Business Days of the notice of such Dispute being received by such other parties subject
to such Dispute (the “Resolution Period”); provided, that if any Dispute would reasonably be expected
to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of such Dispute, then there shall
be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution Period may immediately be
referred to and finally resolved by arbitration pursuant to the then-existing Expedited Procedures (as defined in the AAA Procedures)
of the Commercial Arbitration Rules (the “AAA Procedures”) of the AAA. Any party involved in such Dispute may
submit the Dispute to the AAA to commence the proceedings after the Resolution Period. To the extent that the AAA Procedures and this
Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall be conducted by one arbitrator nominated by
the AAA and reasonably acceptable to each party subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial
experience arbitrating disputes under acquisition agreements. The arbitrator shall accept his or her appointment and begin the arbitration
process promptly after his or her nomination and acceptance by the parties subject to the Dispute. The proceedings shall be streamlined
and efficient. The arbitrator shall decide the Dispute in accordance with the substantive law of the state of Delaware. Time is of the
essence. Each party subject to the Dispute shall submit a proposal for resolution of the Dispute to the arbitrator within twenty (20)
business days after confirmation of the appointment of the arbitrator. The arbitrator shall have the power to order any party to do, or
to refrain from doing, anything consistent with this Agreement, the Ancillary Documents and applicable Law, including to perform its contractual
obligation(s); provided, that the arbitrator shall be limited to ordering pursuant to the foregoing power (and, for the avoidance
of doubt, shall order) the relevant party (or parties, as applicable) to comply with only one or the other of the proposals. The arbitrator’s
award shall be in writing and shall include a reasonable explanation of the arbitrator’s reason(s) for selecting one or the other
proposal. The seat of arbitration shall be in Delaware. The language of the arbitration shall be English.
10.5 Governing
Law; Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of Delaware
without regard to the conflict of laws principles thereof. Subject to Sections 1.15 and 10.4, all Actions arising out of
or relating to this Agreement shall be heard and determined exclusively in the Chancery Court of the State of Delaware (or if the Chancery
Court of the State of Delaware declines to accept jurisdiction, any state or federal court within the State of Delaware or in any appellate
court thereof) (the “Specified Courts”). Subject to Sections 1.15 and 10.4, each Party hereto
hereby (a) submits to the exclusive jurisdiction of the Specified Court for the purpose of any Action arising out of or relating
to this Agreement brought by any Party hereto and (b) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise,
in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt
or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper,
or that this Agreement or the transactions contemplated hereby may not be enforced in or by the Specified Court. Each Party agrees that
a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by Law. Each Party irrevocably consents to the service of the summons and complaint and any other process in any other
Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery of copies
of such process to such Party at the applicable address set forth in Section 10.1. Nothing in this Section 10.5 shall affect the
right of any Party to serve legal process in any other manner permitted by Law.
10.6 WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND
THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 10.6.
10.7 Specific
Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique,
recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and the non-breaching
Parties may have not adequate remedy at law, and agree that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly,
each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically
the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate,
this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
10.8 Severability.
In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified
or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity,
legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity,
legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision
a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid,
illegal or unenforceable provision.
10.9 Amendment.
This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Purchaser, the Company,
the Purchaser Representative and the Seller Representative.
10.10 Waiver.
The Purchaser on behalf of itself and its Affiliates, the Company on behalf of itself and its Affiliates, and the Seller Representative
on behalf of itself and the Company Shareholders, may in its sole discretion (i) extend the time for the performance of any obligation
or other act of any other non-Affiliated Party hereto, (ii) waive any inaccuracy in the representations and warranties by such other
non-Affiliated Party contained herein or in any document delivered pursuant hereto and (iii) waive compliance by such other non-Affiliated
Party with any covenant or condition contained herein. Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the Party or Parties to be bound thereby (including by the Purchaser Representative or the Seller Representative
in lieu of such Party to the extent provided in this Agreement). Notwithstanding the foregoing, no failure or delay by a Party in exercising
any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise
of any other right hereunder. Notwithstanding the foregoing, any waiver of any provision of this Agreement after the Closing shall also
require the prior written consent of the Purchaser Representative.
10.11 Entire
Agreement. This Agreement and the documents or instruments referred to herein, including any exhibits and schedules attached hereto,
which exhibits and schedules are incorporated herein by reference, together with the Ancillary Documents, embody the entire agreement
and understanding of the Parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred
to herein, which collectively supersede all prior agreements and the understandings among the Parties with respect to the subject matter
contained herein.
10.12 Interpretation.
The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement. In this Agreement,
unless the context otherwise requires: (a) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and words
in the singular, including any defined terms, include the plural and vice versa; (b) reference to any Person includes such Person’s
successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person
in a particular capacity excludes such Person in any other capacity; (c) any accounting term used and not otherwise defined in this Agreement
or any Ancillary Document has the meaning assigned to such term in accordance with GAAP; (d) “including” (and with correlative
meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and
shall be deemed in each case to be followed by the words “without limitation”; (e) the words “herein,” “hereto,”
and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not
to any particular Section or other subdivision of this Agreement; (f) the word “if” and other words of similar import when
used herein shall be deemed in each case to be followed by the phrase “and only if”; (g) the term “or” means “and/or”;
(h) any reference to the term “ordinary course” or “ordinary course of business” shall be deemed in each case
to be followed by the words “consistent with past practice”; (i) any agreement, instrument, insurance policy, Law or Order
defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument, insurance
policy, Law or Order as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes, regulations, rules or orders) by succession of comparable successor statutes, regulations, rules
or orders and references to all attachments thereto and instruments incorporated therein; (j) except as otherwise indicated, all references
in this Agreement to the words “Section,” “Article,” “Schedule” and “Exhibit” are intended
to refer to Sections, Articles, Schedules and Exhibits to this Agreement; and (k) the term “Dollars” or “$” means
United States dollars. Any reference in this Agreement to a Person’s directors shall include any member of such Person’s governing
body and any reference in this Agreement to a Person’s officers shall include any Person filling a substantially similar position
for such Person. Any reference in this Agreement or any Ancillary Document to a Person’s shareholders or stockholders shall include
any applicable owners of the equity interests of such Person, in whatever form, including with respect to the Purchaser its stockholders
under the DGCL, as then applicable, or its Organizational Documents. The Parties have participated jointly in the negotiation and drafting
of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue
of the authorship of any provision of this Agreement. To the extent that any Contract, document, certificate or instrument is represented
and warranted to by the Company to be given, delivered, provided or made available by the Company, in order for such Contract, document,
certificate or instrument to have been deemed to have been given, delivered, provided and made available to the Purchaser or its Representatives,
such Contract, document, certificate or instrument shall have been posted to the electronic data site maintained on behalf of the Company
for the benefit of the Purchaser and its Representatives and the Purchaser and its Representatives have been given access to the electronic
folders containing such information.
10.13 Counterparts.
This Agreement and each Ancillary Document may be executed and delivered (including by facsimile or other electronic transmission) in
one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to
be an original but all of which taken together shall constitute one and the same agreement.
10.14 Purchaser
Representative.
(a) The
Purchaser, on behalf of itself and its Subsidiaries, successors and assigns, by execution and delivery of this Agreement, hereby irrevocably
appoints Singto, LLC, in the capacity as the Purchaser Representative, as each such Person’s agent, attorney-in-fact and representative,
with full power of substitution to act in the name, place and stead of such Person, to act on behalf of such Person from and after the
Closing in connection with (i) controlling and making any determinations with respect to the post-Closing Exchange Consideration adjustments
under Section 1.15; (ii) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary
Documents to which the Purchaser Representative is a party or otherwise has rights in such capacity (together with this Agreement, the
“Purchaser Representative Documents”); (iii) signing on behalf of such Person any releases or other documents
with respect to any dispute or remedy arising under any Purchaser Representative Documents; (iv) employing and obtaining the advice of
legal counsel, accountants and other professional advisors as the Purchaser Representative, in its reasonable discretion, deems necessary
or advisable in the performance of its duties as the Purchaser Representative and to rely on their advice and counsel; (v) incurring and
paying reasonable out-of-pocket costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions
contemplated hereby, and any other reasonable out-of-pocket fees and expenses allocable or in any way relating to such transaction or
any indemnification claim; and (vi) otherwise enforcing the rights and obligations of any such Persons under any Purchaser Representative
Documents, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person; provided,
that the Parties acknowledge that the Purchaser Representative is specifically authorized and directed to act on behalf of, and for the
benefit of, the holders of Purchaser Securities (other than the Company Security Holders immediately prior to the Effective Time and their
respective successors and assigns). All decisions and actions by the Purchaser Representative shall be binding upon the Purchaser and
its Subsidiaries, successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise
contest the same. The provisions of this Section 10.14 are irrevocable and coupled with an interest. The Purchaser Representative hereby
accepts its appointment and authorization as the Purchaser Representative under this Agreement.
(b) The
Purchaser Representative shall not be liable for any act done or omitted under any Purchaser Representative Document as the Purchaser
Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to
the advice of counsel shall be conclusive evidence of such good faith. The Purchaser shall indemnify, defend and hold harmless the Purchaser
Representative from and against any and all losses incurred without gross negligence, bad faith or willful misconduct on the part of the
Purchaser Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Purchaser
Representative’s duties under any Purchaser Representative Document, including the reasonable fees and expenses of any legal counsel
retained by the Purchaser Representative. In no event shall the Purchaser Representative in such capacity be liable hereunder or in connection
herewith for any indirect, punitive, special or consequential damages. The Purchaser Representative shall be fully protected in relying
upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies
thereof, and no Person shall have any Liability for relying on the Purchaser Representative in the foregoing manner. In connection with
the performance of its rights and obligations hereunder, the Purchaser Representative shall have the right at any time and from time to
time to select and engage, at the cost and expense of the Purchaser, attorneys, accountants, investment bankers, advisors, consultants
and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses,
as the Purchaser Representative may deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and
powers granted to the Purchaser Representative under this Section 10.14 shall survive the Closing and continue indefinitely.
(c) The
Person serving as the Purchaser Representative may resign upon ten (10) days’ prior written notice to the Purchaser and the Seller
Representative, provided, that the Purchaser Representative appoints in writing a replacement Purchaser Representative. Each successor
Purchaser Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Purchaser
Representative, and the term “Purchaser Representative” as used herein shall be deemed to include any such successor Purchaser
Representatives.
10.15 Seller
Representative.
(a) Each
Company Shareholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes
and appoints Mr. Nusttanakit Sasianon, in his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact
of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf
of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party
or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”),
as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such
documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of
the transactions contemplated under the Seller Representative Documents, including: (i) controlling and making any determinations with
respect to the post-Closing Exchange Consideration adjustments under Section 1.15; (ii) terminating, amending or waiving on behalf
of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations
of the Company Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to
all Company Shareholders unless otherwise agreed by each Company Shareholder who is subject to any disparate treatment of a potentially
material and adverse nature); (iii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy
arising under any Seller Representative Document; (iv) employing and obtaining the advice of legal counsel, accountants and other professional
advisors as the Seller Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties as
the Seller Representative and to rely on their advice and counsel; (v) incurring and paying reasonable costs and expenses, including fees
of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses
allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vi)
receiving all or any portion of the consideration provided to the Company Shareholders under this Agreement and to distribute the same
to the Company Shareholders in accordance with their Pro Rata Share; and (vii) otherwise enforcing the rights and obligations of any such
Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder
on behalf of such Person. All decisions and actions by the Seller Representative shall be binding upon each Company Shareholder and their
respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise
contest the same. The provisions of this Section 10.15 are irrevocable and coupled with an interest. The Seller Representative hereby
accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any
other Person, including the Purchaser Representative, the Purchaser and the Company may conclusively and absolutely rely, without inquiry,
upon any actions of the Seller Representative as the acts of the Company Shareholders under any Seller Representative Documents. The Purchaser
Representative, the Purchaser and the Company shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative
as to (i) any payment instructions provided by the Seller Representative or (ii) any other actions required or permitted to be taken by
the Seller Representative hereunder, and no Company Shareholder shall have any cause of action against the Purchaser Representative, the
Purchaser or the Company for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative.
The Purchaser Representative, the Purchaser and the Company shall not have any Liability to any Company Shareholder for any allocation
or distribution among the Company Shareholders by the Seller Representative of payments made to or at the direction of the Seller Representative.
All notices or other communications required to be made or delivered to a Company Shareholder under any Seller Representative Document
shall be made to the Seller Representative for the benefit of such Company Shareholder, and any notices so made shall discharge in full
all notice requirements of the other parties hereto or thereto to such Company Shareholder with respect thereto. All notices or other
communications required to be made or delivered by a Company Shareholder shall be made by the Seller Representative (except for a notice
under Section 10.15(d) of the replacement of the Seller Representative).
(c) The
Seller Representative will act for the Company Shareholders on all of the matters set forth in this Agreement in the manner the Seller
Representative believes to be in the best interest of the Company Shareholders, but the Seller Representative will not be responsible
to the Company Shareholders for any losses that any Company Shareholder may suffer by reason of the performance by the Seller Representative
of the Seller Representative’s duties under this Agreement, other than losses arising from the bad faith, gross negligence or willful
misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Company
Shareholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all losses
reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity
as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any
Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative.
In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive,
special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative
Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done
or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully
protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including
facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner.
In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time
and from time to time to select and engage, at the reasonable cost and expense of the Company Shareholders, attorneys, accountants, investment
bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records
and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time
to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 10.15 shall survive
the Closing and continue indefinitely.
(d) If
the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities
as representative and agent of Company Shareholders, then the Company Shareholders shall, within ten (10) days after such death, disability,
dissolution, resignation or other event, appoint a successor Seller Representative (by vote or written consent of the Company Shareholders
holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within five (5)
Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor.
Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
10.16 Legal
Representation. The Parties agree that, notwithstanding the fact that Nelson Mullins may have, prior to Closing, jointly represented
the Purchaser, Merger Sub, the Purchaser Representative and/or Singto, LLC in connection with this Agreement, the Ancillary Documents
and the transactions contemplated hereby and thereby, and has also represented the Purchaser and/or its Affiliates in connection with
matters other than the transaction that is the subject of this Agreement, Nelson Mullins will be permitted in the future, after Closing,
to represent Singto, LLC, the Purchaser Representative or their respective Affiliates in connection with matters in which such Persons
are adverse to the Purchaser or any of its Affiliates, including any disputes arising out of, or related to, this Agreement. The Company
and the Seller Representative, who are or have the right to be represented by independent counsel in connection with the transactions
contemplated by this Agreement, hereby agree, in advance, to waive (and to cause their Affiliates to waive) any actual or potential conflict
of interest that may hereafter arise in connection with Nelson Mullins’s future representation of one or more of Singto, LLC, the
Purchaser Representative or their respective Affiliates in which the interests of such Person are adverse to the interests of the Purchaser,
the Company and/or the Seller Representative or any of their respective Affiliates, including any matters that arise out of this Agreement
or that are substantially related to this Agreement or to any prior representation by Nelson Mullins of the Purchaser, Merger Sub, Singto,
LLC, the Purchaser Representative or any of their respective Affiliates. The Parties acknowledge and agree that, for the purposes of the
attorney-client privilege, Singto, LLC and the Purchaser Representative shall be deemed the clients of Nelson Mullins with respect to
the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications shall remain privileged
after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Singto, LLC and the
Purchaser Representative, shall be controlled by Singto, LLC and the Purchaser Representative and shall not pass to or be claimed by Purchaser
or the Surviving Corporation; provided, further, that nothing contained herein shall be deemed to be a waiver by the Purchaser
or any of its Affiliates (including, after the Effective Time, the Surviving Corporation and its Affiliates) of any applicable privileges
or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
Article
XI
DEFINITIONS
11.1 Certain
Definitions. For purpose of this Agreement, the following capitalized terms have the following meanings:
“AAA”
means the American Arbitration Association or any successor entity conducting arbitrations.
“Accounting
Principles” means in accordance with GAAP as in effect at the date of the financial statement to which it refers or if there
is no such financial statement, then as of the Closing Date, using and applying the same accounting principles, practices, procedures,
policies and methods (with consistent classifications, judgments, elections, inclusions, exclusions and valuation and estimation methodologies)
used and applied by the Target Companies in the preparation of the latest audited Company Financials.
“Action”
means any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint,
stipulation, assessment or arbitration, or any request (including any request for information), inquiry, hearing, proceeding or investigation,
by or before any Governmental Authority.
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such
Person. For the avoidance of doubt, Singto, LLC shall be deemed to be an Affiliate or the Purchaser prior to the Closing.
“Ancillary
Documents” means each agreement, instrument or document attached hereto as an Exhibit, and the other agreements, certificates
and instruments to be executed or delivered by any of the Parties hereto in connection with or pursuant to this Agreement.
“Benefit
Plans” of any Person means any and all deferred compensation, executive compensation, incentive compensation, equity purchase
or other equity-based compensation plan, severance or termination pay, holiday, vacation or other bonus plan or practice, hospitalization
or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension, or retirement plan, program, agreement,
commitment or arrangement, and each other employee benefit plan, program, agreement or arrangement, including each “employee benefit
plan” as such term is defined under Section 3(3) of ERISA, maintained or contributed to or required to be contributed to by a Person
for the benefit of any employee or terminated employee of such Person, or with respect to which such Person has any Liability, whether
direct or indirect, actual or contingent, whether formal or informal, and whether legally binding or not.
“Business
Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York,
New York are authorized to close for business, excluding as a result of “stay at home,” “shelter-in-place,” “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
authority so long as the electronic funds transfer systems, including for wire transfers, of commercially banking institutions in New
York, New York are generally open for use by customers on such day.
“Cayman Act”
means the Companies Act (Revised) of the Cayman Islands.
“CCC”
means the Civil and Commercial Code of Thailand.
“Closing Company
Cash” means, as of the Reference Time, the aggregate cash and cash equivalents of the Target Companies on hand or in bank
accounts, including deposits in transit, minus the aggregate amount of outstanding and unpaid checks issued by or on behalf of the Target
Companies as of such time.
“Closing Net Indebtedness”
means, as of the Reference Time, (i) the aggregate amount of all Indebtedness of the Target Companies, less (ii) the Closing Company Cash,
in each case of clauses (i) and (ii), on a consolidated basis and as determined in accordance with the Accounting Principles.
“Code”
means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as amended. Reference to a specific section of
the Code shall include such section and any valid Treasury Regulation promulgated thereunder.
“Common Consideration”
means the aggregate amount that would be paid in respect of the aggregate number of shares of Company Common Shares that are issued and
outstanding as of immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 1.12).
“Company
Charter” means the Certificate of Incorporation of the Company, as amended and effective under the DGCL, prior to the Effective
Time.
“Company
Common Shares” means the ordinary shares, par value Thai Baht 10 per share, of the Company.
“Company
Confidential Information” means all confidential or proprietary documents and information concerning the Target Companies
or any of their respective Representatives, furnished in connection with this Agreement or the transactions contemplated hereby; provided,
however, that Company Confidential Information shall not include any information which, (i) at the time of disclosure by the Purchaser
or its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (ii) at the time of the disclosure
by the Company or its Representatives to the Purchaser or its Representatives was previously known by such receiving party without violation
of Law or any confidentiality obligation by the Person receiving such Company Confidential Information.
“Company
Convertible Securities” means, collectively, any warrants, convertible promissory notes or other rights to subscribe for
or purchase any capital stock of the Company or securities convertible into or exchangeable for, or that otherwise confer on the holder
any right to acquire any capital stock of the Company.
“Company Equity
Plan” shall have the meaning set forth in Section 4.3(b) hereof.
“Company
Option” means each option to purchase shares of Company Common Shares granted to any current or former director, officer,
employee or other service provider of the Company or any of its Subsidiaries that is outstanding and unexercised.
“Company
Securities” means, collectively, the Company Shares and any Company Convertible Securities.
“Company
Security Holders” means, collectively, the holders of Company Securities.
“Company
Shares” means any shares of the Company Common Shares.
“Company
Shareholders” means, collectively, the holders of Company Shares.
“Company
Unvested Option” means each Company Option outstanding as of immediately prior to the Effective Time that is not a Vested
Company Option.
“Company
Vested Option” means each Company Option outstanding as of immediately prior to the Effective Time that is vested as of
such time.
“Company
Warrants” means, collectively, warrants issued by the Company to purchase Company Common Shares.
“Consent”
means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with any Governmental Authority
or any other Person.
“Contracts”
means all contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses
(and all other contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments
or obligations of any kind, written or oral (including any amendments and other modifications thereto).
“Control”
of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by contract, or otherwise. “Controlled,” “Controlling”
and “under common Control with” have correlative meanings. Without limiting the foregoing a Person (the “Controlled
Person”) shall be deemed Controlled by (a) any other Person (i) owning beneficially, as meant in Rule 13d-3 under the Exchange
Act, securities entitling such Person to cast ten percent (10%) or more of the votes for election of directors or equivalent governing
authority of the Controlled Person or (ii) entitled to be allocated or receive ten percent (10%) or more of the profits, losses, or distributions
of the Controlled Person; (b) an officer, director, general partner, partner (other than a limited partner), manager, or member (other
than a member having no management authority that is not a Person described in clause (a) above) of the Controlled Person; or (c) a spouse,
parent, lineal descendant, sibling, aunt, uncle, niece, nephew, mother-in-law, father-in-law, sister-in-law, or brother-in-law of an Affiliate
of the Controlled Person or a trust for the benefit of an Affiliate of the Controlled Person or of which an Affiliate of the Controlled
Person is a trustee.
“Copyrights”
means any works of authorship, mask works and all copyrights therein, including all renewals and extensions, copyright registrations and
applications for registration and renewal, and non-registered copyrights.
“Dissenting
Shares” means any shares of Company Shares for which a Company Shareholder has exercised appraisal rights pursuant to Section
262 of the DGCL.
“Due
Diligence Review Period” means that period of time commencing on the Effective Date through and including April 1,
2025, during which time Purchaser shall review and/or perform all inspections and studies of the Company’s tangible and intangible
assets, records, facilities and other property.
“Environmental
Law” means any Law in any way relating to (a) the protection of human health and safety, (b) the protection, preservation
or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply,
surface land, subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use, storage, recycling,
treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Materials, including
the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC. Section 9601 et. seq., the Resource Conservation and
Recovery Act, 42 USC. Section 6901 et. seq., the Toxic Substances Control Act, 15 USC. Section 2601 et. seq., the Federal Water Pollution
Control Act, 33 USC. Section 1151 et seq., the Clean Air Act, 42 USC. Section 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide
Act, 7 USC. Section 111 et. seq., Occupational Safety and Health Act, 29 USC. Section 651 et. seq. (to the extent it relates to exposure
to Hazardous Substances), the Asbestos Hazard Emergency Response Act, 15 USC. Section 2601 et. seq., the Safe Drinking Water Act, 42 USC.
Section 300f et. seq., the Oil Pollution Act of 1990 and analogous state acts.
“ERISA”
means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Fraud
Claim” means any claim based in whole or in part upon fraud, willful misconduct or intentional misrepresentation.
“GAAP”
means generally accepted accounting principles as in effect in the United States of America.
“Governmental
Authority” means any federal, state, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality,
department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving
panel or body.
“Hazardous
Material” means any waste, gas, liquid or other substance or material that is defined, listed or designated as a “hazardous
substance,” “pollutant,” “contaminant,” “hazardous waste,” “regulated substance,”
“hazardous chemical,” or “toxic chemical” (or by any similar term) under any Environmental Law, or any other material
regulated, or that could result in the imposition of Liability or responsibility, under any Environmental Law, including petroleum and
its by-products, asbestos, polychlorinated biphenyls, radon, mold, and urea formaldehyde insulation.
“IFRS”
means International Financial Reporting Standards, which are accounting standards issued by the International Accounting Standards Board.a
“Indebtedness”
of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including the outstanding principal
and accrued but unpaid interest), (b) all obligations for the deferred purchase price of property or services (other than trade payables
incurred in the ordinary course of business), (c) any other indebtedness of such Person that is evidenced by a note, bond, debenture,
credit agreement or similar instrument, (d) all obligations of such Person under leases that should be classified as capital leases in
accordance with GAAP, (e) all obligations of such Person for the reimbursement of any obligor on any line or letter of credit, banker’s
acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (f) all obligations of such
Person in respect of acceptances issued or created, (g) all interest rate and currency swaps, caps, collars and similar agreements or
hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency,
(h) all obligations secured by an Lien on any property of such Person, (i) any premiums, prepayment fees or other penalties, fees, costs
or expenses associated with payment of any Indebtedness of such Person and (j) all obligation described in clauses (a) through (i) above
of any other Person which is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise)
to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
“Insider
Letter” means the letter dated December 21, 2021 to the Purchaser from the Purchaser Representative and other parties, as
filed as Exhibit 10.1 to the Current Report on Form 8-K filed by the Purchaser with the SEC on December 30, 2021.
“Intellectual
Property” means all of the following as they exist in any jurisdiction throughout the world: Patents, Trademarks, Copyrights,
Trade Secrets, Internet Assets, Software and other intellectual property, and all licenses, sublicenses and other agreements or permissions
related to the preceding property.
“Internet
Assets” means any and all domain name registrations, web sites and web addresses and related rights, items and documentation
related thereto, and applications for registration therefor.
“IPO”
means the initial public offering of Purchaser Public Units pursuant to the IPO Prospectus.
“IPO
Prospectus” means the final prospectus of the Purchaser declared effective on December 23, 2021 and filed with the SEC on
December 28, 2021 (File No. 333-259338).
“IPO
Underwriter” means EF Hutton, a division of Benchmark Investments, LLC now D. Boral Capital.
“IRS”
means the U.S. Internal Revenue Service (or any successor Governmental Authority).
“Key
Management” means Suradech Taweesaengsakulthai, Suthee Chivaphongse, Han Wen (Raymond) Chee and Nisachon Attanamanee.
“Knowledge”
means, with respect to (i) the Company, the actual knowledge of Key Management, after reasonable inquiry, or (ii) any other Party, (A)
if an entity, the actual knowledge of its directors and executive officers, after reasonable inquiry, or (B) if a natural person, the
actual knowledge of such Party after reasonable inquiry.
“Law”
means any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict,
decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that
is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the
authority of any Governmental Authority.
“Liabilities”
means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether absolute, accrued, contingent or otherwise,
whether known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required
to be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards), including Tax liabilities due or
to become due.
“Lien”
means any mortgage, pledge, security interest, attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien or charge
of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on
voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, or any filing or agreement
to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Material
Adverse Effect” means, with respect to any specified Person, any fact, event, occurrence, change or effect that has had,
or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (a) the business, assets, Liabilities,
results of operations, prospects or condition (financial or otherwise) of such Person and its Subsidiaries, taken as a whole, or (b) the
ability of such Person or any of its Subsidiaries on a timely basis to consummate the transactions contemplated by this Agreement or the
Ancillary Documents to which it is a party or bound or to perform its obligations hereunder or thereunder; provided, however, that
for purposes of clause (a) above, any changes or effects directly or indirectly attributable to, resulting from, relating to or arising
out of the following (by themselves or when aggregated with any other, changes or effects) shall not be deemed to be, constitute, or be
taken into account when determining whether there has or may, would or could have occurred a Material Adverse Effect: (i) general changes
in the financial or securities markets or general economic or political conditions in the country or region in which such Person or any
of its Subsidiaries do business; (ii) changes, conditions or effects that generally affect the industries in which such Person or any
of its Subsidiaries principally operate; (iii) changes in GAAP or other applicable accounting principles or mandatory changes in the regulatory
accounting requirements applicable to any industry in which such Person and its Subsidiaries principally operate; (iv) conditions caused
by acts of God, terrorism, pandemic, war (whether or not declared) or natural disaster; (v) any failure in and of itself by such Person
and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any
period (provided that the underlying cause of any such failure may be considered in determining whether a Material Adverse Effect has
occurred or would reasonably be expected to occur to the extent not excluded by another exception herein) and (vi) with respect to the
Purchaser, the consummation and effects of the Redemption (or any redemption in connection with the Extension); provided further, however,
that any event, occurrence, fact, condition, or change referred to in clauses (i) - (iv) immediately above shall be taken into account
in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event,
occurrence, fact, condition, or change has a disproportionate effect on such Person or any of its Subsidiaries compared to other participants
in the industries in which such Person or any of its Subsidiaries primarily conducts its businesses. Notwithstanding the foregoing, with
respect to the Purchaser, the amount of the Redemption (or any redemption in connection with the Extension, if any) or the failure to
obtain the Required Purchaser Stockholder Approval shall not be deemed to be a Material Adverse Effect on or with respect to the Purchaser.
“Merger
Sub Common Shares” means the ordinary shares of Merger Sub.
“Nasdaq”
means the Nasdaq Global Market.
“Net Working Capital”
means, as of the Reference Time, (i) all current assets of the Target Companies (excluding, without duplication, Closing Company Cash),
on a consolidated basis, minus (ii) all current liabilities of the Target Companies (excluding, without duplication, Indebtedness
and unpaid Transaction Expenses), on a consolidated basis and as determined in accordance with the Accounting Principles; provided, that,
for purposes of this definition, whether or not the following is consistent with the Accounting Principles, “current assets”
will exclude any receivable from a Company Shareholder.
“Order”
means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action
that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational
Documents” means, with respect to any Person that is an entity, its certificate of incorporation or formation, bylaws, operating
agreement, memorandum and articles of association or similar organizational documents, in each case, as amended.
“OTC”
or “OTC Markets OTCPK” means OTC Pink, a marketplace operated by the OTC Markets Group, serves as an accessible
platform for small companies,
“Patents”
means any patents, patent applications and the inventions, designs and improvements described and claimed therein, patentable inventions,
and other patent rights (including any divisionals, provisionals, continuations, continuations-in-part, substitutions, or reissues thereof,
whether or not patents are issued on any such applications and whether or not any such applications are amended, modified, withdrawn,
or refiled).
“PCAOB”
means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“Per Share Consideration”
means the quotient of (i) the Common Consideration divided by (ii) the sum, without duplication, of the aggregate number of shares of
Company Common Shares that are issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance
with Section 1.12).
“Permits”
means all federal, state, local or foreign or other third-party permits, grants, easements, consents, approvals, authorizations, exemptions,
licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations,
ratings, registrations, qualifications or orders of any Governmental Authority or any other Person.
“Permitted
Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not delinquent
or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto,
(b) other Liens imposed by operation of Law arising in the ordinary course of business for amounts which are not due and payable and as
would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property subject
thereto, (c) Liens incurred or deposits made in the ordinary course of business in connection with social security, (d) Liens on goods
in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business, or (e) Liens arising
under this Agreement or any Ancillary Document.
“Person”
means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership),
limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political
subdivision thereof, or an agency or instrumentality thereof.
“Personal
Data” means, with respect to any natural Person, such Person’s name, street address, telephone number, e-mail address,
photograph, social security number, tax identification number, driver’s license number, passport number, credit card number, bank
account number and other financial information, customer or account numbers, account access codes and passwords, any other information
that allows the identification of such Person or enables access to such Person’s financial information or that is defined as “personal
data,” “personally identifiable information,” “personal information,” or similar term under any applicable
Privacy Laws.
“Personal
Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts
and other tangible personal property.
“PIPE
Investment” shall have the meaning set forth in the Recitals.
“PIPE
Investor” shall have the meaning set forth in the Recitals.
“Privacy
Laws” means all applicable United States state and federal Laws, and the laws of applicable jurisdictions, relating to privacy
and protection of Personal Data; and any and all similar state and federal Laws relating to privacy, security, data protection, data availability
and destruction and data breach, including security incident notification.
“Pro
Rata Share” means with respect to each Company Shareholder, a fraction expressed a percentage equal to (i) the portion of
the Stockholder Exchange Consideration payable by the Purchaser to such Company Shareholder in accordance with the terms of this Agreement,
divided by (ii) the total Stockholder Exchange Consideration payable by the Purchaser to all Company Shareholders in accordance with the
terms of this Agreement.
“Proceeding”
means any action, suit, proceeding, complaint, claim, charge, hearing, labor dispute, inquiry or investigation before or by a Governmental
Authority or an arbitrator.
“Purchaser
Certificate of Incorporation” means Fourth Amended and Restated Certificate of Incorporation of the Purchaser dated as of
December 28, 2024.
“Purchaser
Class A Common Stock” means the shares of Class A common stock, par value $0.0001 per share, of the Purchaser.
“Purchaser
Class B Common Stock” means the shares of Class B common stock, par value $0.0001 per share, of the Purchaser.
“Purchaser
Common Stock” means the shares of Purchaser Class A Common Stock and Purchaser Class B Common Stock, collectively.
“Purchaser
Confidential Information” means all confidential or proprietary documents and information concerning the Purchaser or any
of its Representatives; provided, however, that Purchaser Confidential Information shall not include any information which, (i)
at the time of disclosure by the Company, the Seller Representative or any of their respective Representatives, is generally available
publicly and was not disclosed in breach of this Agreement or (ii) at the time of the disclosure by the Purchaser or its Representatives
to the Company, the Seller Representative or any of their respective Representatives, was previously known by such receiving party without
violation of Law or any confidentiality obligation by the Person receiving such Purchaser Confidential Information. For the avoidance
of doubt, from and after the Closing, Purchaser Confidential Information will include the confidential or proprietary information of the
Target Companies.
“Purchaser
Preferred Stock” means preferred shares, par value $0.0001 per share, of Purchaser.
“Purchaser Private
Units” means the units issued by Purchaser in a private placement to Singto, LLC at the time of the consummation of the
IPO consisting of one (1) share of Purchaser Class A Common Stock and one Purchaser Private Warrant.
“Purchaser Private
Warrants” means one whole warrant that was included in as part of each Purchaser Private Unit, entitling the holder thereof
to purchase one (1) share of Purchaser Class A Common Stock at a purchase price of $11.50 per share.
“Purchaser Public
Units” means the units issued in the IPO (including overallotment units acquired by Purchaser’s underwriter) consisting
of one (1) share of Purchaser Class A Common Stock and one Purchaser Public Warrant.
“Purchaser Public
Warrants” means one whole warrant that was included in as part of each Purchaser Public Unit, entitling the holder thereof
to purchase one (1) share of Purchaser Class A Common Stock at a purchase price of $11.50 per share.
“Purchaser Securities”
means the Purchaser Units, the Purchaser Common Stock, the Purchaser Preferred Stock and the Purchaser Warrants, collectively.
“Purchaser Units”
means Purchaser Private Units and Purchaser Public Units, collectively.
“Purchaser Warrants”
means Purchaser Private Warrants and Purchaser Public Warrants, collectively.
“Purchaser’s
Organizational Documents” means the Organizational Documents of the Purchaser.
“Redemption
Price” means an amount equal to the price at which each share of Purchaser Common Stock is redeemed or converted pursuant
to the Redemption (as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations and the like after the Closing).
“Registration
Rights Agreement” means the Registration Rights Agreement in the form of Exhibit G hereto.
“Reference Time”
means the close of business of the Company on the Closing Date (but without giving effect to the transactions contemplated by this Agreement,
including any payments by Purchaser hereunder to occur at the Closing, but treating any obligations in respect of Indebtedness, Transaction
Expenses or other liabilities that are contingent upon the consummation of the Closing as currently due and owing without contingency
as of the Reference Time).
“Release”
means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor
or outdoor environment, or into or out of any property.
“Representatives”
means, as to any Person, such Person’s Affiliates and the respective managers, directors, officers, employees, independent contractors,
consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person or
its Affiliates.
“SEC”
means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Securities
Act” means the Securities Act of 1933, as amended.
“Significant
Company Holder” means any Company Shareholder who (i) is an executive officer or director of the Company or (ii) owns more
than five percent (5%) of the issued and outstanding shares of the Company.
“Software”
means any computer software programs, including all source code, object code, and documentation related thereto and all software modules,
tools and databases.
“SOX”
means the U.S. Sarbanes-Oxley Act of 2002, as amended.
“Sponsor”
means Singto, LLC, a Delaware limited liability company.
“Subscription
Agreement” shall have the meaning set forth in the Recitals.
“Subsidiary”
means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a
majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority
of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person
or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a
majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated a majority
of partnership, association or other business entity gains or losses or will be or control the managing director, managing member, general
partner or other managing Person of such partnership, association or other business entity. A Subsidiary of a Person will also include
any variable interest entity which is consolidated with such Person under applicable accounting rules.
“Target
Company” means each of the Company and its direct and indirect Subsidiaries.
“Tax
Return” means any return, declaration, report, claim for refund, information return or other documents (including any related
or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or
collection of any Taxes or the administration of any Laws or administrative requirements relating to any Taxes.
“Taxes”
means (a) all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added,
ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and
related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property,
windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever,
together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment
of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for
any period or otherwise through operation of law and (c) any Liability for the payment of amounts described in clauses (a) or (b) as a
result of any tax sharing, tax group, tax indemnity or tax allocation agreement (excluding commercial agreements entered into in the ordinary
course of business the primary purpose of which is not the sharing of Taxes) with, or any other express or implied agreement to indemnify,
any other Person.
“Trade
Secrets” means any trade secrets, confidential business information, concepts, ideas, designs, research or development information,
processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering drawings, methods,
know-how, data, mask works, discoveries, inventions, modifications, extensions, improvements, and other proprietary rights (whether or
not patentable or subject to copyright, trademark, or trade secret protection).
“Trademarks”
means any trademarks, service marks, trade dress, trade names, brand names, internet domain names, designs, logos, or corporate names
(including, in each case, the goodwill associated therewith), whether registered or unregistered, and all registrations and applications
for registration and renewal thereof.
“Transaction Expenses”
means all fees and expenses of any of the Target Companies incurred or payable as of the Closing and not paid prior to the Closing (i)
in connection with the consummation of the transactions contemplated hereby, including any amounts payable to professionals (including
investment bankers, brokers, finders, attorneys, accountants and other consultants and advisors) retained by or on behalf of any Target
Company, (ii) any change in control bonus, transaction bonus, retention bonus, termination or severance payment or payment relating to
terminated options, warrants or other equity appreciation, phantom equity, profit participation or similar rights, in any case, to be
made to any current or former employee, independent contractor, director or officer of any Target Company at or after the Closing pursuant
to any agreement to which any Target Company is a party prior to the Closing which become payable (including if subject to continued employment)
as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby and (iii) any sales, use, real
property transfer, stamp, stock transfer or other similar transfer Taxes imposed on Purchaser, Merger Sub or any Target Company in connection
with the Mergers or the other transactions contemplated by this Agreement.
“Trust
Account” means the trust account established by Purchaser with the proceeds from the IPO pursuant to the Trust Agreement
in accordance with the IPO Prospectus.
“Trust
Agreement” means that certain Investment Management Trust Agreement, dated as of December 23, 2021, as amended through the
third amendment on December 28, 2024, as it may be further amended by and between the Purchaser and the Trustee, as well as any other
agreements entered into related to or governing the Trust Account.
“Trustee”
means Continental Stock Transfer and Trust Company, in its capacity as trustee under the Trust Agreement.
11.2 Section
References. The following capitalized terms, as used in this Agreement, have the respective meanings given to them in the Section
as set forth below adjacent to such terms:
| Term |
|
Section |
|
Term |
|
Section |
| Accounts Receivable |
|
4.7(e) |
|
Company Financials |
|
4.7(a) |
| Acquisition Proposal |
|
5.6(a) |
|
Company IP |
|
4.13(d) |
| Agreement |
|
Preamble |
|
Company IP Licenses |
|
4.13(a) |
| Alternative Transaction |
|
5.6(a) |
|
Company Material Contracts |
|
4.12(a) |
| Amended Purchaser Articles and Memorandum of Association |
|
1.18 |
|
Company Permits |
|
4.10 |
| Antitrust Laws |
|
5.9(b) |
|
Company Personal Property Leases |
|
4.16 |
| Audited Company Financials |
|
4.7(a) |
|
Company Real Property Leases |
|
4.15 |
| Business Combination |
|
9.1 |
|
Company Registered IP |
|
4.13(a) |
| Certificate of Merger |
|
1.2 |
|
Company Special Meeting |
|
5.13 |
| CFO |
|
1.15(a) |
|
Controlled Person |
|
Article XI |
| Term |
|
Section |
|
Term |
|
Section |
| Conversion |
|
1.8 |
|
Post-Closing Purchaser Board |
|
5.17(a) |
| D&O Indemnified Persons |
|
5.18(a) |
|
Proxy Statement |
|
5.12(a) |
| D&O Tail Insurance |
|
5.18(b) |
|
Public Certifications |
|
3.6(a) |
| DGCL |
|
3.2 |
|
Public Stockholders |
|
9.1 |
| Effective Time |
|
1.2 |
|
Purchaser |
|
Preamble |
| Enforceability Exceptions |
|
3.2 |
|
Purchaser Director |
|
5.17(a) |
| Environmental Permits |
|
4.20 |
|
Purchaser Disclosure Schedules |
|
Article III |
| Estimated Closing Statement |
|
1.14 |
|
Purchaser Financials |
|
3.6(b) |
| Exchange Agent |
|
1.12 |
|
Purchaser Material Contract |
|
3.13(a) |
| Exchange Consideration |
|
1.7 |
|
Purchaser Representative |
|
Preamble |
| Expenses |
|
8.3 |
|
Purchaser Stockholder Approval Matters |
|
5.12(a) |
| Extension |
|
5.3(a) |
|
Purchaser Special Meeting |
|
5.12(a) |
| Extension Expenses |
|
5.3(a)(iv) |
|
Redemption |
|
5.12(a) |
| CCC |
|
4.1(a) |
|
Registration Statement |
|
5.12(a) |
| Federal Securities Laws |
|
5.7 |
|
Related Person |
|
4.21 |
| Incentive Plan |
|
5.12(a) |
|
Released Claims |
|
9.1 |
| Independent Expert |
|
1.15(b) |
|
Representative Party |
|
1.15(b) |
| Independent Expert Notice Date |
|
1.15(b) |
|
Required Company Shareholder Approval |
|
7.1(b) |
| Interim Balance Sheet Date |
|
4.7(a) |
|
Required Purchaser Stockholder Approval |
|
7.1(a) |
| Interim Period |
|
5.1(a) |
|
SEC Reports |
|
3.6(a) |
| Letter of Transmittal |
|
1.12 |
|
Section 409A Plan |
|
4.19(j) |
| Lock-Up Agreement |
|
Recitals |
|
Seller Representative |
|
Preamble |
| Lost Certificate Affidavit |
|
|
|
Signing Filing |
|
5.14(b) |
| Merger |
|
Recitals |
|
Signing Press Release |
|
5.14(b) |
| Merger Sub |
|
Preamble |
|
Sponsor Director |
|
5.17(a) |
| Non-Competition Agreement |
|
Recitals |
|
Sponsor Support Agreement |
|
Recitals |
| Objection Statement |
|
1.15(b) |
|
Surviving Company |
|
1.1 |
| OFAC |
|
3.19(c) |
|
Stockholder Exchange Consideration |
|
1.7 |
| Off-the-Shelf Software |
|
4.13(a) |
|
Surviving Corporation |
|
1.1 |
| Outbound IP License |
|
4.13(c) |
|
Top Customers |
|
4.24 |
| Outside Date |
|
8.1(b) |
|
Top Suppliers |
|
4.24 |
| Party(ies) |
|
Preamble |
|
Transmittal Documents |
|
1.12 |
| PIPE Investment |
|
5.20 |
|
Voting Agreements |
|
Recitals |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each Party
hereto has caused this Agreement and Plan of Merger to be signed and delivered as of the date first written above.
| |
The Purchaser: |
| |
|
|
|
| |
Arogo Capital Acquisition Corp. |
| |
|
|
|
| |
By: |
/s/
Suradech Taweesaengsakulthai |
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Name: |
Suradech Taweesaengsakulthai |
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Title: |
Chief Executive Officer |
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The Purchaser Representative: |
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Singto, LLC, solely in the capacity
as the Purchaser Representative hereunder |
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By: |
/s/
Suradech Taweesaengsakulthai |
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Name: |
Suradech Taweesaengsakulthai |
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Title: |
Chief Executive Officer |
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The Company: |
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Bangkok Tellink Co., Ltd. |
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By: |
/s/
Nusttanakit Sasianon |
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Name: |
Nusttanakit Sasianon |
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Title: |
Chief Executive Officer |
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The Seller Representative: |
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Nusttanakit Sasianon & Sawin Laosethakul,
jointly and solely in their capacity as the Seller Representative hereunder |
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By: |
/s/
Nusttanakit Sasianon |
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Name: |
Nusttanakit Sasianon |
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Title: |
Seller Representative |
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By: |
/s/
Sawin Laosethakul |
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Name: |
Sawin Laosethakul |
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Title: |
Seller Representative |
[Signature Page to Merger Agreement]
Exhibit 10.1
Execution Version
FORM OF LOCK-UP AGREEMENT
THIS
LOCK-UP AGREEMENT (this “Agreement”) is made and entered into as of [●] [●],
202[●], by and among (i) Arogo Capital Acquisition Corp., a
company incorporated in Delaware (together with its successors, the “Purchaser”), (ii) Singto, LLC, a
Delaware limited liability company in the capacity as the representative from and after the Effective Time (as defined below) for the
stockholders of the Purchaser (other than the Company Security Holders (as defined below) as of immediately prior to the Effective Time
and their successors and assignees) in accordance with the terms and conditions of the Merger Agreement (as defined below) (the “Purchaser
Representative”), and (iii) the undersigned (the “Holder”). Any capitalized term used but not
defined in this Agreement will have the meaning ascribed to such term in the Merger Agreement.
WHEREAS, on February
14, 2025, (i) the Purchaser, (ii) BTL Merger (Cayman) Ltd., a to-be-formed Cayman Islands exempted company, and a wholly-owned
subsidiary of the Company upon execution of a joinder thereto (“Merger Sub”), (iii) the Purchaser Representative
(iii) BTL Holdings (Cayman) Limited, upon execution of a joinder agreement to become party to this Agreement, a to-be-formed Cayman
Islands exempted company (“Pubco”), (iv) Mr. Nusttanakit Sasianon and Mr Sawin Laosethakul, solely in
their capacity as the representatives from and after the Effective Time for the Company Shareholders (as defined in the Merger Agreement)
as of immediately prior to the Effective Time in accordance with the terms and conditions of the Merger Agreement, and (v) Bangkok
Tellink Co., Ltd., a Bangkok Registered company (the “Company”), entered into that certain Agreement and
Plan of Merger (as amended from time to time in accordance with the terms thereof, the “Merger Agreement”),
pursuant to which, among other matters, the parties thereto intend to effect the merger of Purchaser with and into Merger Sub and Purchaser
continuing as the surviving entity or, alternatively, Purchaser merging with and into Pubco and Purchaser becoming a wholly owned subsidiary
of Pubco (the “Merger”), all upon the terms and subject to the conditions set forth in the Merger Agreement
and in accordance with the applicable provisions of the DGCL, the CCC, and the Cayman Act (each as defined herein), all in accordance
with the terms of the Merger Agreement;
WHEREAS, as of the
date hereof, Holder is a Seller under the Merger Agreement and a holder of the Company Shares in such amounts as set forth underneath
Holder’s name on the signature page hereto; and
WHEREAS, pursuant to
the Merger Agreement, and in view of the valuable consideration to be received by Holder thereunder, the parties desire to enter into
this Agreement, pursuant to which the Exchange Shares to be issued to Holder in the Share Exchange, including the Escrow Shares and any
additional Exchange Shares issued after the Closing pursuant to Section 1.15 of the Merger Agreement (all such securities, together
with any securities paid as dividends or distributions with respect to such securities or into which such securities are exchanged or
converted, the “Restricted Securities”) shall become subject to limitations on disposition as set forth herein.
NOW, THEREFORE, in
consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to
be legally bound hereby, the parties hereby agree as follows:
1. Lock-Up
Provisions.
(a)
Holder hereby agrees not to, during the period commencing from the Closing and ending on the earlier of (x) the date that is six
(6) months after the date of the Closing, and the date after the Closing on which the Pubco consummates a liquidation, merger, share exchange
or other similar transaction with an unaffiliated third party that results in all of the Purchaser’s shareholders having the right
to exchange their Restricted Securities for cash, securities or other property (a “Subsequent Transaction”)
(such period, the “Lock-Up Period”): (i) lend, offer, pledge, hypothecate, encumber, donate, assign, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, any Restricted Securities, (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences of ownership of the Restricted Securities, or (iii) publicly
disclose the intention to do any of the foregoing, whether any such transaction described in clauses (i), (ii) or (iii) above is to be
settled by delivery of Restricted Securities or other securities, in cash or otherwise (any of the foregoing described in clauses (i),
(ii) or (iii), a “Prohibited Transfer”). The foregoing sentence shall not apply to the transfer of any or all
of the Restricted Securities owned by Holder (other than Escrow Shares until such Escrow Shares are disbursed to Holder from the Escrow
Account in accordance with the terms and conditions of the Merger Agreement and the Escrow Agreement) (I) by gift, will or intestate succession
upon the death of Holder, (II) to any Permitted Transferee (defined below), or (III) pursuant to a court order or settlement agreement
related to the distribution of assets in connection with the dissolution of marriage or civil union or (IV) to Pubco in accordance with
the requirements of the Merger Agreement; provided, however, that in any of cases (I), (II) or (III) it shall be a condition to such transfer
that the transferee executes and delivers to Pubco and the Purchaser Representative an agreement stating that the transferee is receiving
and holding the Restricted Securities subject to the provisions of this Agreement applicable to Holder, and there shall be no further
transfer of such Restricted Securities except in accordance with this Agreement. As used in this Agreement, the term “Permitted
Transferee” shall mean: (A) the members of Holder’s immediate family (for purposes of this Agreement, “immediate
family” shall mean with respect to any natural person, any of the following: such person’s spouse or domestic partner, the
siblings of such person and his or her spouse or domestic partner, and the direct descendants and ascendants (including adopted and step
children and parents) of such person and his or her spouse or domestic partner and siblings), (B) any trust for the direct or indirect
benefit of Holder or the immediate family of Holder, (C) if Holder is a trust, to the trustor or beneficiary of such trust or to the estate
of a beneficiary of such trust, (D) if Holder is an entity, as a distribution to limited partners, shareholders, members of, or owners
of similar equity interests in Holder upon the liquidation and dissolution of Holder and (E) to any affiliate of Holder. Holder further
agrees to execute such agreements as may be reasonably requested by Pubco or the Purchaser Representative that are consistent with the
foregoing or that are necessary to give further effect thereto.
(b)
Holder further acknowledges and agrees that it shall not be permitted to engage in any Prohibited Transfer with respect to any
Escrow Shares until such Escrow Shares are disbursed to Holder from the Escrow Account in accordance with the terms and conditions of
the Merger Agreement and the Escrow Agreement.
(c)
If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer
shall be null and void ab initio, and Pubco shall refuse to recognize any such purported transferee of the Restricted Securities as one
of its equity holders for any purpose. In order to enforce this Section 1, Pubco may impose stop-transfer instructions with
respect to the Restricted Securities of Holder (and Permitted Transferees and assigns thereof) until the end of the Lock-Up Period.
(d)
During the Lock-Up Period (and with respect to any Escrow Shares, if longer, during the period when such Escrow Shares are held
in the Escrow Account), each certificate evidencing any Restricted Securities shall be stamped or otherwise imprinted with a legend in
substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF [●] [●], 202[●], BY
AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”), A CERTAIN REPRESENTATIVE OF THE ISSUER NAMED THEREIN,
AND THE ISSUER’S SECURITY HOLDER NAMED THEREIN, AS AMENDED. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY
THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(e)
For the avoidance of any doubt, Holder shall retain all of its rights as a shareholder of Pubco with respect to the Restricted
Securities during the Lock-Up Period, including the right to vote any Restricted Securities, but subject to the obligations under the
Merger Agreement and the Escrow Agreement.
2. Miscellaneous.
(a) Termination of
Merger Agreement. This Agreement shall be binding upon Holder upon Holder’s execution and delivery of this Agreement, but
this Agreement shall only become effective upon the Closing. Notwithstanding anything to the contrary contained herein, in the event
that the Merger Agreement is terminated in accordance with its terms prior to the Closing, this Agreement shall automatically
terminate and become null and void, and the parties shall not have any rights or obligations hereunder.
(b) Binding Effect;
Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns. This Agreement and all obligations of Holder are personal to Holder and may
not be transferred or delegated by Holder at any time except pursuant to the terms and conditions set forth herein. Pubco may freely
assign any or all of its rights under this Agreement, in whole or in part, to any successor entity (whether by merger,
consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of Holder (but from and after the
Closing, the consent of the Purchaser Representative shall be required). If the Purchaser Representative is replaced in accordance
with the terms of the Merger Agreement, the replacement Purchaser Representative shall automatically become a party to this
Agreement as if it were the original Purchaser Representative hereunder.
(c) Third Parties.
Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions
contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is
not a party hereto or thereto or a successor or permitted assign of such a party.
(d) Dispute
Resolution. Any and all disputes, controversies and claims (other than applications for a temporary restraining order,
preliminary injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this
Section 7(g) arising out of, related to, or in connection with this Agreement or the transactions contemplated hereby (a
“Dispute”) shall be governed by this Section 7(g). A Party must, in the first instance, provide written
notice of any Disputes to the other Parties subject to such Dispute, which notice must provide a reasonably detailed description of
the matters subject to the Dispute. The Parties involved in such Dispute shall seek to resolve the Dispute on an amicable basis
within forty-five (45) days of the notice of such Dispute being received by such other Parties subject to such Dispute (the
“Resolution Period”); provided, that if any Dispute would reasonably be expected to have become moot or
otherwise irrelevant if not decided within forty-five (45) days after the occurrence of such Dispute, then there shall be no
Resolution Period with respect to such Dispute. Any Dispute that cannot be resolved during the Resolution Period shall immediately
be referred to mediation conducted by the Brisbane Supreme Court in Brisbane, Australia. Any Dispute that is not resolved through
mediation may immediately be referred to and finally resolved by arbitration pursuant to the then-existing Expedited Procedures (as
defined in the AAA Procedures) of the Commercial Arbitration Rules (the “AAA Procedures”) of the AAA. Any
Party involved in such Dispute may submit the Dispute to the AAA to commence the proceedings after the Resolution Period. To the
extent that the AAA Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall
be conducted by one arbitrator nominated by the AAA promptly (but in any event within five (5) Business Days) after the submission
of the Dispute to the AAA and reasonably acceptable to each Party subject to the Dispute, which arbitrator shall be a commercial
lawyer with substantial experience arbitrating disputes under acquisition agreements. The arbitrator shall accept his or her
appointment and begin the arbitration process promptly (but in any event within five (5) Business Days) after his or her nomination
and acceptance by the Parties subject to the Dispute. The proceedings shall be streamlined and efficient. The arbitrator shall
decide the Dispute in accordance with the substantive law of the state of New York. Time is of the essence. Each Party subject to
the Dispute shall submit a proposal for resolution of the Dispute to the arbitrator within twenty (20) days after confirmation of
the appointment of the arbitrator. The arbitrator shall have the power to order any Party subject to the Dispute to do, or to
refrain from doing, anything consistent with this Agreement, the Ancillary Documents and applicable Law, including to perform its
contractual obligation(s); provided, that the arbitrator shall be limited to ordering pursuant to the foregoing power (and, for the
avoidance of doubt, shall order) the relevant Party (or Parties, as applicable) to comply with only one or the other of the
proposals. The arbitrator’s award shall be in writing and shall include a reasonable explanation of the arbitrator’s
reason(s) for selecting one or the other proposal. The seat of arbitration shall be in New York County, State of New York. The
language of the arbitration shall be English.
(e) Governing Law;
Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Delaware,
without regard to the conflict of law principles thereof. All Actions arising out of or relating to this Agreement shall be heard
and determined exclusively in any state or federal court located in Chancery Court of the State of Delaware (or if the Chancery
Court of the State of Delaware declines to accept jurisdiction, any state or federal court within the State of Delaware or in any
appellate court thereof or in any appellate courts thereof) (the “Specified Courts”). Each party hereto
hereby (i) submits to the exclusive jurisdiction of any Specified Court for the purpose of any Action arising out of or
relating to this Agreement brought by any party hereto and (ii) irrevocably waives, and agrees not to assert by way of motion,
defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the
venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any
Specified Court. Each party agrees that a final judgment in any Action shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to the service of the
summons and complaint and any other process in any other action or proceeding relating to the transactions contemplated by this
Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such party at the applicable
address set forth in Section 2(h). Nothing in this Section 2(e) shall affect the right of any party to
serve legal process in any other manner permitted by applicable law.
(f) WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (ii)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 2(f).
(g) Interpretation.
The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting
this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the
generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words
“without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other
words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or
other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated
jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(h) Notices. All
notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when
delivered (i) in person, (ii) by facsimile or other electronic means, with affirmative confirmation of receipt, (iii) one Business
Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after
being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party
at the following addresses (or at such other address for a party as shall be specified by like notice):
|
If to the Purchaser Representative, to:
Singto, LLC
c/o Arogo Capital Acquisition Corp.
848 Brickell Avenue, Penthouse 5
Miami, FL 33131
Attn: Suradech Taweesaengsakulthai
Telephone No.: (786) 442-1482
E-mail: suradech@cho.co.th |
With a copy to (which shall not constitute notice):
Rimôn PC
1050 Connecticut Ave NW, Suite 500
Washington, D.C. 20036
Attn: Debbie Klis, Esq.
Telephone No.: (202) 935-3390
Email: debbie.klis@rimonlaw.com |
|
If to Purchaser, at or prior to the Closing,:
Arogo Capital Acquisition Corp.
848 Brickell Avenue, Penthouse 5
Miami, FL 33131
Attn: Suradech Taweesaengsakulthai
Telephone No.: (786) 442-1482
E-mail: suradech@cho.co.th |
with a copy (which will not constitute notice) to:
Rimôn PC
1050 Connecticut Ave NW, Suite 500
Washington, D.C. 20036
Attn: Debbie Klis, Esq.
Attn: Debbie Klis, Esq.
Telephone No.: (202) 935-3390
Email: debbie.klis@rimonlaw.com |
|
If to Purchaser, after the Closing:
Bangkok Tellink Co., Ltd.
89/2 Building 6, 2nd Floor, Room No. 6203
Chaengwattana Road, Thung Song Room
Lak Si Bangkok 10210, Thailand
Attn: Mr. Nusttanakit Sasianon, Mr. Sawin Laosethakul
Telephone No.: 02-191-5555
E-mail: nusttanakit.sa@bangkoktellink.co.th, Sawin@S1Winconsultant.com |
with a copy (which will not constitute notice) to:
Araya & Partners Co., Ltd.
973 President Tower, 6th Floor, Room no. 6G
Ploenchit Road, Lumpini, Pathumwan
Bangkok Thailand 10330
Attn: Phatcharapon Sunlakawit
Telephone No.: (+66) 26560606
Mobile Phone No.: (+66) 650593656
E-mail: phatcharapon@aaplaws.com |
| If to Holder, to: the address set forth below Holder’s name on the signature page to this Agreement. |
(i) Amendments and
Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance, and either retroactively or prospectively) only with the written consent of Pubco, the
Purchaser Representative and Holder. No failure or delay by a party in exercising any right hereunder shall operate as a waiver
thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be
deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
(j) Severability.
In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be
modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable,
and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired
thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon
such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute
for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid,
legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(k) Specific
Performance. The parties acknowledges that its obligations under this Agreement are unique, recognizes and affirms that in the
event of a breach of this Agreement by any party, money damages will be inadequate and the parties will have no adequate remedy at
law, and agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by
Holder in accordance with their specific terms or were otherwise breached. Accordingly, each party shall be entitled to an
injunction or restraining order to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof,
without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in
addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity.
(l) Entire
Agreement. This Agreement constitutes the full and entire understanding and agreement among the parties with respect to the
subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is
expressly canceled; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of
the parties under the Merger Agreement or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall
limit any of the rights or remedies of any party hereto under any other agreement or any certificate or instrument delivered in
connection with the Merger Agreement, and nothing in any other agreement, certificate or instrument shall limit any of the rights or
remedies or any of the obligations of Holder under this Agreement.
(m) Further
Assurances. From time to time, at another party’s request and without further consideration (but at the requesting
party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all such further
action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(n) Counterparts;
Facsimile. This Agreement may also be executed and delivered by facsimile signature or by email in portable document
format in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and
the same instrument.
{Remainder of Page Intentionally Left Blank;
Signature Pages Follow}
IN WITNESS WHEREOF,
the parties have executed this Lock-Up Agreement as of the date first written above.
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Purchaser: |
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AROGO CAPITAL ACQUISITION CORP. |
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By: |
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Name: |
Suradech Taweesaengsakulthai |
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Title: |
Chief Executive Officer |
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The Purchaser Representative: |
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Singto, LLC, solely in its capacity under the Merger Agreement as the Purchaser Representative |
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By: |
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Name: |
|
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Title: |
|
{Additional Signature on the Following Page}
{Signature Page to Lock-Up Agreement}
IN WITNESS WHEREOF,
the parties have executed this Lock-Up Agreement as of the date first written above.
| Holder: |
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| Name of Holder: [ |
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] |
| Number and Type of Company Shares Owned: |
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| Company Ordinary Shares: |
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| Address for Notice: |
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| Address: |
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| Facsimile No.: |
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| Telephone No.: |
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{Signature Page to Lock-Up Agreement}
Exhibit 10.2
Execution Version
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
THIS NON-COMPETITION AND NON-SOLICITATION
AGREEMENT (this “Agreement”) is being executed and delivered as of February 14, 2025, by the undersigned security
holder of the Company (as defined below) (the “Subject Party”) in favor of and for the benefit of Arogo Capital
Acquisition Corp., a company incorporated in Delaware (together with its successors, the “Purchaser”), (ii)
BTL Merger (Cayman) Ltd., a to-be-formed Cayman Islands exempted company, and a wholly-owned subsidiary of the Company upon execution
of a joinder thereto (“Merger Sub”), (iii) BTL Holdings (Cayman) Limited, upon execution of a
joinder agreement to become party to this Agreement, a to-be-formed Cayman Islands exempted company (“Pubco”),
and (iv) Bangkok Tellink Co., Ltd., a Bangkok Registered company (the “Company”), and each of Purchaser’s,
Merger Sub’s, and/or the Company’s present and future Affiliates, successors and direct and indirect Subsidiaries (including
the Company) (collectively with Purchaser, Merger Sub and the Company, the “Covered Parties”). Any capitalized
term used, but not defined in this Agreement will have the meaning ascribed to such term in the Merger Agreement (as defined herein).
WHEREAS, on or about the date
hereof, (i) the Purchaser, (ii) Merger Sub, (iii) Singto, LLC, a Delaware limited liability company, in the capacity as the representative
from and after the Effective Time (as defined the Merger Agreement) for the stockholders of the Purchaser (other than the Company Security
Holders (as defined below) as of immediately prior to the Effective Time and their successors and assignees) in accordance with the terms
and conditions of the Merger Agreement (the “Purchaser Representative”), (iv) Pubco, (v) Mr. Nusttanakit
Sasianon and Mr Sawin Laosethakul, solely in their capacity as the representatives from and after the Effective Time for the Company
Shareholders (as in defined the Merger Agreement) as of immediately prior to the Effective Time in accordance with the terms and conditions
of the Merger Agreement, and (vi) Bangkok Tellink Co., Ltd., a Bangkok Registered company (the “Company”),
entered into that certain Merger Agreement (as amended from time to time in accordance with the terms thereof, the “Merger
Agreement”), pursuant to which, among other matters, the parties thereto intend to effect the merger of Purchaser with and
into Merger Sub and Purchaser continuing as the surviving entity or, alternatively, Purchaser merging with and into Pubco and Purchaser
becoming a wholly owned subsidiary of Pubco (the “Merger”), all upon the terms and subject to the conditions
set forth in the Merger Agreement and in accordance with the applicable provisions of the DGCL, the CCC, and the Cayman Act (each as defined
herein), all in accordance with the terms of the Merger Agreement;
WHEREAS, the Company, is a
licensed Mobile Virtual Network Service Operator (“MVNO”) as well as a licensed Mobile Virtual Network Aggregator (“MVNA”)
and offers mobile phone packages across multiple frequencies (700MHz, 850MHz, 2100MHz, 2300MHz, and 26GHz) and under its ‘INFINITE’
brand, it also provides a range of services including Smart Solutions, IoT Sim Cards, E-sim, SMPP (virtual SMS), SIP trunk (voice virtual
number), and software development (the “Business”);
WHEREAS, in connection with,
and as a condition to the execution and delivery of the Merger Agreement and the consummation of the Merger, the Share Exchange and the
other transactions contemplated thereby (collectively, the “Transactions”), and to enable the Company to secure
more fully the benefits of the Transactions, including the protection and maintenance of the goodwill and confidential information of
the Company, the Purchaser and Merger Sub and their respective Subsidiaries, each of Purchaser and Merger Sub has required that the Subject
Party enter into this Agreement;
WHEREAS, the Subject Party
is entering into this Agreement in order to induce Purchaser, Merger Sub, and the Company to enter into the Merger Agreement and consummate
the Transactions, pursuant to which the Subject Party will directly or indirectly receive a material benefit; and
WHEREAS, the Subject Party,
as a former and/or current stockholder, director, officer and/or employee of the Purchaser or its Subsidiaries, has contributed to the
value of the Purchaser and its Subsidiaries and has obtained extensive and valuable knowledge and confidential information concerning
the business of the Company and its Subsidiaries.
NOW, THEREFORE, in order to
induce, the Purchaser, Merger Sub, and the Company to enter into the Merger Agreement and consummate the Transactions, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Subject Party hereby agrees as follows:
1. Restriction
on Competition.
(a) Restriction.
The Subject Party hereby agrees that during the period from the Closing until the two (2) year anniversary of the Closing Date (such period,
the “Restricted Period”), the Subject Party will not, and will cause his or her Affiliates not to, without the
prior written consent of Pubco (which may be withheld in its sole discretion), anywhere in the United States and Thailand (the “Territory”),
directly or indirectly engage in the Business (other than through a Covered Party) or own, manage, finance or control, or participate
in the ownership, management, financing or control of, or become engaged or serve as an officer, director, member, partner, employee,
agent, consultant, advisor or representative of, a business or entity (other than a Covered Party) that engages in the Business (a “Competitor”).
Notwithstanding the foregoing, the Subject Party and his or her Affiliates may own passive investments of no more than two percent (2%)
of any class of outstanding equity interests in a Competitor that is publicly traded, so long as the Subject Party and his or her Affiliates
and immediate family members are not directly or indirectly involved in the management or control of such Competitor (“Permitted
Ownership”).
(b) Acknowledgment.
The Subject Party acknowledges and agrees, based upon the advice of legal counsel and/or the Subject Party’s own education, experience
and training, that (i) the Subject Party possesses knowledge of confidential information of the Covered Parties and the Business, (ii)
the Subject Party’s execution of this Agreement is a material inducement to Purchaser and Pubco to enter into the Merger Agreement
and consummate the Transactions and to realize the goodwill of the Company and its Subsidiaries, for which the Subject Party and/or his
or her Affiliates will receive a substantial direct or indirect financial benefit, and that Purchaser and Pubco would not have entered
into the Merger Agreement or consummated the Transactions but for the Subject Party’s agreements set forth in this Agreement; (iii)
it would impair the goodwill of the Covered Parties and reduce the value of the assets of the Covered Parties and cause serious and irreparable
injury if the Subject Party and/or his or her Affiliates were to use their ability and knowledge by engaging in the Business in competition
with a Covered Party, and/or to otherwise breach the obligations contained herein and that the Covered Parties would not have an adequate
remedy at law because of the unique nature of the Business, (iv) the Subject Party and his or her Affiliates have no intention of engaging
in the Business (other than through the Covered Parties) during the Restricted Period other than through Permitted Ownership, (v) the
relevant public policy aspects of restrictive covenants, covenants not to compete and non-solicitation provisions have been discussed,
and every effort has been made to limit the restrictions placed upon the Subject Party to those that are reasonable and necessary to protect
the Covered Parties’ legitimate interests, (vi) the Covered Parties conduct and intend to conduct the Business everywhere in the
Territory and compete with other businesses that are or could be located in any part of the Territory, (vii) the foregoing restrictions
on competition are fair and reasonable in type of prohibited activity, geographic area covered, scope and duration, (viii) the consideration
provided to the Subject Party under this Agreement and the Merger Agreement is not illusory, and (ix) such provisions do not impose a
greater restraint than is necessary to protect the goodwill or other business interests of the Covered Parties.
2. No
Solicitation; No Disparagement.
(a) No
Solicitation of Employees and Consultants. The Subject Party agrees that, during the Restricted Period, the Subject Party and his
or her Affiliates will not, without the prior written consent of Pubco (which may be withheld in its sole discretion), either on its own
behalf or on behalf of any other Person (other than, if applicable, a Covered Party in the performance of its duties on behalf of the
Covered Parties), directly or indirectly: (i) hire or engage as an employee, independent contractor, consultant or otherwise any Covered
Personnel (as defined below); (ii) solicit, induce, encourage or otherwise knowingly cause (or attempt to do any of the foregoing) any
Covered Personnel to leave the service (whether as an employee, consultant or independent contractor) of any Covered Party; or (iii) in
any way interfere with or attempt to interfere with the relationship between any Covered Personnel and any Covered Party; provided,
however, the Subject Party and its Affiliates will not be deemed to have violated this Section 2(a) if any Covered Personnel
voluntarily and independently solicits an offer of employment from the Subject Party or his or her Affiliate (or other Person whom any
of them is acting on behalf of) by responding to a general advertisement or solicitation program conducted by or on behalf of the Subject
Party or his or her Affiliate (or such other Person whom any of them is acting on behalf of) that is not targeted at such Covered Personnel
or Covered Personnel generally, so long as such Covered Personnel is not hired. For purposes of this Agreement, “Covered Personnel”
shall mean any Person who is or was an employee, consultant or independent contractor of the Covered Parties as of the date of the relevant
act prohibited by this Section 2(a) or during the one (1) year period preceding such date.
(b) Non-Solicitation
of Customers and Suppliers. The Subject Party agrees that, during the Restricted Period, the Subject Party and his or her Affiliates
will not, without the prior written consent of Pubco (which may be withheld in its sole discretion), individually or on behalf of any
other Person (other than, if applicable, a Covered Party in the performance of its duties on behalf of the Covered Parties), directly
or indirectly: (i) solicit, induce, encourage or otherwise knowingly cause (or attempt to do any of the foregoing) any Covered Customer
(as defined below) to (A) cease being, or not become, a client or customer of any Covered Party with respect to the Business or (B) reduce
the amount of business of such Covered Customer with any Covered Party, or otherwise alter such business relationship in a manner adverse
to any Covered Party, in either case, with respect to or relating to the Business; (ii) interfere with or disrupt (or attempt to interfere
with or disrupt) the contractual relationship between any Covered Party and any Covered Customer; (iii) divert any business with any Covered
Customer relating to the Business from a Covered Party; (iv) solicit for business, provide services to, engage in or do business with,
any Covered Customer for products or services that are part of the Business; or (v) interfere with or disrupt (or attempt to interfere
with or disrupt), any Person that was a vendor, supplier, distributor, agent or other service provider of a Covered Party at the time
of such interference or disruption, for a purpose competitive with a Covered Party as it relates to the Business. For purposes of this
Agreement, a “Covered Customer” shall mean any Person who is or was an actual customer or client (or prospective
customer or client with whom a Covered Party actively marketed or made or taken specific action to make a proposal) of a Covered Party
as of the date of the relevant act prohibited by this Section 2(b) or during the one (1) year period preceding such date.
(c) Non-Disparagement.
The Subject Party agrees that from and after the Closing until the Second (2nd) anniversary of the end of the Restricted Period,
the Subject Party and his or her Affiliates will not, directly or indirectly engage in any conduct that involves the making or publishing
(including through electronic mail distribution or online social media) of any written or oral statements or remarks (including the repetition
or distribution of derogatory rumors, allegations, negative reports or comments) that are disparaging, deleterious or damaging to the
integrity, reputation or good will of one or more Covered Parties or their respective management, officers, employees, independent contractors
or consultants. Notwithstanding the foregoing, subject to Section 3 below, the provisions of this Section 2(c) shall not
restrict the Subject Party from providing truthful testimony or information in response to a subpoena or investigation by a Governmental
Authority or in connection with any legal action by the Subject Party or his or her Affiliate against any Covered Party under this Agreement,
the Merger Agreement or any other Ancillary Document that is asserted by the Subject Party or his or her Affiliate in good faith.
3. Confidentiality.
From and after the Closing Date, the Subject Party will, and will cause its Representatives to,
keep confidential and not (except, if applicable, in the performance of its duties on behalf of the Covered Parties) directly or indirectly
use, disclose, reveal, publish, transfer or provide access to, any and all Covered Party Information without the prior written consent
of Pubco (which may be withheld in its sole discretion). As used in this Agreement, “Covered Party Information”
means all material and information relating to the business, affairs and assets of any Covered Party, including material and information
that concerns or relates to such Covered Party’s bidding and proposal, technical information, computer hardware or software, administrative,
management, operational, data processing, financial, marketing, sales, human resources, business development, planning and/or other business
activities, regardless of whether such material and information is maintained in physical, electronic, or other form, that is: (A) gathered,
compiled, generated, produced or maintained by such Covered Party through its Representatives, or provided to such Covered Party by its
suppliers, service providers or customers; and (B) intended and maintained by such Covered Party or its Representatives, suppliers, service
providers or customers to be kept in confidence. The obligations set forth in this Section 3 will not apply to any Covered Party
Information where the Subject Party can prove that such material or information: (i) is known or available through other lawful sources
not bound by a confidentiality agreement with, or other confidentiality obligation to, any Covered Party; (ii) is or becomes publicly
known through no violation of this Agreement or other non-disclosure obligation of the Subject Party or any of its Representatives; (iii)
is already in the possession of the Subject Party at the time of disclosure through lawful sources not bound by a confidentiality agreement
or other confidentiality obligation as evidenced by the Subject Party’s documents and records; or (iv) is required to be disclosed
pursuant to an order of any administrative body or court of competent jurisdiction (provided that (A) the applicable Covered Party is
given reasonable prior written notice, (B) the Subject Party cooperates (and causes its Representatives to cooperate) with any reasonable
request of any Covered Party to seek to prevent or narrow such disclosure and (C) if after compliance with clauses (A) and (B) such disclosure
is still required, the Subject Party and its Representatives only disclose such portion of the Covered Party Information that is expressly
required by such order, as it may be subsequently narrowed).
4. Representations
and Warranties. The Subject Party hereby represents and warrants, to and for the benefit of the Covered Parties as of the date of
this Agreement and as of the Closing Date, that: (a) the Subject Party has full power and capacity to execute and deliver, and to perform
all of the Subject Party’s obligations under, this Agreement; and (b) neither the execution and delivery of this Agreement nor the
performance of the Subject Party’s obligations hereunder will result directly or indirectly in a violation or breach of any agreement
or obligation by which the Subject Party is a party or otherwise bound. By entering into this Agreement, the Subject Party certifies and
acknowledges that the Subject Party has carefully read all of the provisions of this Agreement, and that the Subject Party voluntarily
and knowingly enters into this Agreement.
5. Remedies.
The covenants and undertakings of the Subject Party contained in this Agreement relate to matters which are of a special, unique and
extraordinary character and a violation of any of the terms of this Agreement may cause irreparable injury to the Covered Parties, the
amount of which may be impossible to estimate or determine and which cannot be adequately compensated. The Subject Party agrees that,
in the event of any breach or threatened breach by the Subject Party of any covenant or obligation contained in this Agreement, each applicable
Covered Party will be entitled to obtain the following remedies (in addition to, and not in lieu of, any other remedy at law or in equity
or pursuant to the Merger Agreement or the other Ancillary Documents that may be available to the Covered Parties, including monetary
damages), and a court of competent jurisdiction may award: (i) an injunction, restraining order or other equitable relief restraining
or preventing such breach or threatened breach, without the necessity of proving actual damages or that monetary damages would be insufficient
or posting bond or security, which the Subject Party expressly waives; and (ii) recovery of the Covered Party’s attorneys’
fees and costs incurred in enforcing the Covered Party’s rights under this Agreement. The Subject Party hereby consents to the award
of any of the above remedies to the applicable Covered Party in connection with any such breach or threatened breach. The Subject Party
hereby acknowledges and agrees that in the event of any breach of this Agreement, any value attributed or allocated to this Agreement
(or any other non-competition agreement with the Subject Party) under or in connection with the Merger Agreement shall not be considered
a measure of, or a limit on, the damages of the Covered Parties.
6. Survival
of Obligations. The expiration of the Restricted Period will not relieve the Subject Party of any obligation or liability arising
from any breach by the Subject Party of this Agreement during the Restricted Period. The Subject Party further agrees that the time period
during which the covenants contained in Section 1, 2 and 3 and of this Agreement will be effective will be computed
by excluding from such computation any time during which the Subject Party is in violation of any provision of such Sections.
7. Miscellaneous.
(a) Notices.
All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when
delivered (i) in person, (ii) by facsimile or other electronic means, with affirmative confirmation of receipt, (iii) one Business Day
after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed,
if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following
addresses (or at such other address for a party as shall be specified by like notice):
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If to Purchaser or Merger Sub, at or prior to the Closing, to:
Arogo Capital Acquisition Corp.
848 Brickell Avenue, Penthouse 5
Miami, FL 33131
Attn: Suradech Taweesaengsakulthai
Telephone No.: (786) 442-1482
E-mail: suradech@cho.co.th |
with a copy (that will not constitute notice) to:
Rimôn PC
1050 Connecticut Ave NW, Suite 500
Washington, D.C. 20036
Attn: Debbie Klis, Esq.
Telephone No.: (202) 935-3390
Email: debbie.klis@rimonlaw.com m |
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|
If to the Company prior to the Closing, to:
Bangkok Tellink Co., Ltd.
89/2 Building 6, 2nd Floor, Room No. 6203
Chaengwattana Road, Thung Song Room
Lak Si Bangkok 10210, Thailand
Attn: Mr. Nusttanakit Sasianon, Mr. Sawin Laosethakul
Telephone No.: 02-191-5555
E-mail: nusttanakit.sa@bangkoktellink.co.th,
Sawin@S1Winconsultant.com |
with a copy (that will not constitute notice) to:
Araya & Partners Co., Ltd.
973 President Tower, 6th Floor, Room no. 6G
Ploenchit Road, Lumpini, Pathumwan
Bangkok Thailand 10330
Attn: Phatcharapon Sunlakawit
Telephone No.: (+66) 26560606
Mobile Phone No.: (+66) 650593656
E-mail: phatcharapon@aaplaws.com |
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|
If to Purchaser, Merger Sub, the Company or any other Covered Party from or after the Closing, to:
Bangkok Tellink Co., Ltd.
89/2 Building 6, 2nd Floor, Room No. 6203
Chaengwattana Road, Thung Song Room
Lak Si Bangkok 10210, Thailand
Attn: Mr. Nusttanakit Sasianon, Mr. Sawin Laosethakul
Telephone No.: 02-191-5555
E-mail: nusttanakit.sa@bangkoktellink.co.th,
Sawin@S1Winconsultant.com |
with a copy (that will not constitute notice) to:
Araya & Partners Co., Ltd.
973 President Tower, 6th Floor, Room no. 6G
Ploenchit Road, Lumpini, Pathumwan
Bangkok Thailand 10330
Attn: Phatcharapon Sunlakawit
Telephone No.: (+66) 26560606
Mobile Phone No.: (+66) 650593656
E-mail: phatcharapon@aaplaws.com |
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|
If to the Subject Party, to:
the address below the Subject Party’s name on the signature
page to this Agreement.
|
(b) Integration
and Non-Exclusivity. This Agreement, the Merger Agreement and the other Ancillary Documents contain the entire agreement between the
Subject Party and the Covered Parties concerning the subject matter hereof. Notwithstanding the foregoing, the rights and remedies of
the Covered Parties under this Agreement are not exclusive of or limited by any other rights or remedies which they may have, whether
at law, in equity, by contract or otherwise, all of which will be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of the Covered Parties, and the obligations and liabilities of the Subject Party and its Affiliates,
under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities (i) under the laws of unfair competition,
misappropriation of trade secrets, or other requirements of statutory or common law, or any applicable rules and regulations and (ii)
otherwise conferred by contract, including the Merger Agreement and any other written agreement between the Subject Party or its Affiliate
and any of the Covered Parties. Nothing in the Merger Agreement will limit any of the obligations, liabilities, rights or remedies of
the Subject Party or the Covered Parties under this Agreement, nor will any breach of the Merger Agreement or any other agreement between
the Subject Party or its Affiliate and any of the Covered Parties limit or otherwise affect any right or remedy of the Covered Parties
under this Agreement. If any term or condition of any other agreement between the Subject Party or its Affiliate and any of the Covered
Parties conflicts or is inconsistent with the terms and conditions of this Agreement, the more restrictive terms will control as to the
Subject Party or its Affiliate, as applicable.
(c) Severability;
Reformation. Each provision of this Agreement is separable from every other provision of this Agreement. If any provision of this
Agreement is found or held to be invalid, illegal or unenforceable, in whole or in part, by a court of competent jurisdiction, then (i)
such provision will be deemed amended to conform to applicable laws so as to be valid, legal and enforceable to the fullest possible extent,
(ii) the invalidity, illegality or unenforceability of such provision will not affect the validity, legality or enforceability of such
provision under any other circumstances or in any other jurisdiction, and (iii) the invalidity, illegality or unenforceability of such
provision will not affect the validity, legality or enforceability of the remainder of such provision or the validity, legality or enforceability
of any other provision of this Agreement. The Subject Party and the Covered Parties will substitute for any invalid, illegal or unenforceable
provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of
such invalid, illegal or unenforceable provision. Without limiting the foregoing, if any court of competent jurisdiction determines that
any part hereof is unenforceable because of the duration, geographic area covered, scope of such provision, or otherwise, such court will
have the power to reduce the duration, geographic area covered or scope of such provision, as the case may be, and, in its reduced form,
such provision will then be enforceable. The Subject Party will, at a Covered Party’s request, join such Covered Party in requesting
that such court take such action.
(d) Amendment;
Waiver. This Agreement may not be amended or modified in any respect, except by a written agreement executed by the Subject Party,
Pubco, Purchaser and, from and after the Closing, the Purchaser Representative (or their respective permitted successors or assigns).
No waiver will be effective unless it is expressly set forth in a written instrument executed by the waiving party (and from and after
the Closing if such waiving party is a Covered Party, the Purchaser Representative) and any such waiver will have no effect except in
the specific instance in which it is given. Any delay or omission by a party in exercising its rights under this Agreement, or failure
to insist upon strict compliance with any term, covenant, or condition of this Agreement will not be deemed a waiver of such term, covenant,
condition or right, nor will any waiver or relinquishment of any right or power under this Agreement at any time or times be deemed a
waiver or relinquishment of such right or power at any other time or times.
(e) Dispute
Resolution. Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary
injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this Section 7(g) arising
out of, related to, or in connection with this Agreement or the transactions contemplated hereby (a “Dispute”)
shall be governed by this Section 7(g). A Party must, in the first instance, provide written notice of any Disputes to the other Parties
subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The Parties
involved in such Dispute shall seek to resolve the Dispute on an amicable basis within forty-five (45) days of the notice of such Dispute
being received by such other Parties subject to such Dispute (the “Resolution Period”); provided, that if any
Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within forty-five (45) days after the
occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that cannot be resolved
during the Resolution Period shall immediately be referred to mediation conducted by the Brisbane Supreme Court in Brisbane, Australia.
Any Dispute that is not resolved through mediation may immediately be referred to and finally resolved by arbitration pursuant to the
then-existing Expedited Procedures (as defined in the AAA Procedures) of the Commercial Arbitration Rules (the “AAA Procedures”)
of the AAA. Any Party involved in such Dispute may submit the Dispute to the AAA to commence the proceedings after the Resolution Period.
To the extent that the AAA Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall
be conducted by one arbitrator nominated by the AAA promptly (but in any event within five (5) Business Days) after the submission of
the Dispute to the AAA and reasonably acceptable to each Party subject to the Dispute, which arbitrator shall be a commercial lawyer with
substantial experience arbitrating disputes under acquisition agreements. The arbitrator shall accept his or her appointment and begin
the arbitration process promptly (but in any event within five (5) Business Days) after his or her nomination and acceptance by the Parties
subject to the Dispute. The proceedings shall be streamlined and efficient. The arbitrator shall decide the Dispute in accordance with
the substantive law of the state of New York. Time is of the essence. Each Party subject to the Dispute shall submit a proposal for resolution
of the Dispute to the arbitrator within twenty (20) days after confirmation of the appointment of the arbitrator. The arbitrator shall
have the power to order any Party subject to the Dispute to do, or to refrain from doing, anything consistent with this Agreement, the
Ancillary Documents and applicable Law, including to perform its contractual obligation(s); provided, that the arbitrator shall be limited
to ordering pursuant to the foregoing power (and, for the avoidance of doubt, shall order) the relevant Party (or Parties, as applicable)
to comply with only one or the other of the proposals. The arbitrator’s award shall be in writing and shall include a reasonable
explanation of the arbitrator’s reason(s) for selecting one or the other proposal. The seat of arbitration shall be in New York
County, State of New York. The language of the arbitration shall be English.
(f) Governing
Law; Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of Delaware
without regard to the conflict of laws principles thereof. Subject to Section 7(e), all Actions arising out of or relating to this
Agreement shall be heard and determined exclusively in any state or federal court located in in Chancery Court of the State of Delaware
(or if the Chancery Court of the State of Delaware declines to accept jurisdiction, any state or federal court within the State of Delaware
or in any appellate court thereof or in any appellate courts thereof) (the “Specified Courts”). Subject to Section
7(e), each party hereto hereby (a) submits to the exclusive jurisdiction of any Specified Court for the purpose of any Action arising
out of or relating to this Agreement brought by any party hereto, (b) irrevocably waives, and agrees not to assert by way of motion, defense
or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the
Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Court and
(c) waives any bond, surety or other security that might be required of any other party with respect thereto. Each party agrees that a
final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law or in equity. Each party irrevocably consents to the service of the summons and complaint and any other process in any
other action or proceeding relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal
delivery of copies of such process to such party at the applicable address set forth in Section 7(a). Nothing in this Section
7(f) shall affect the right of any party to serve legal process in any other manner permitted by Law.
(g) WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 7(g). ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 7(g) WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
(h) Successors
and Assigns; Third Party Beneficiaries. This Agreement will be binding upon the Subject Party and the Subject Party’s estate,
successors and assigns, and will inure to the benefit of the Covered Parties, and their respective successors and assigns. Each Covered
Party may freely assign any or all of its rights under this Agreement, at any time, in whole or in part, to any Person which acquires,
in one or more transactions, at least a majority of the equity securities (whether by equity sale, merger or otherwise) of such Covered
Party or all or substantially all of the assets of such Covered Party and its Subsidiaries, taken as a whole, without obtaining the consent
or approval of the Subject Party. The Subject Party agrees that the obligations of the Subject Party under this Agreement are personal
and will not be assigned by the Subject Party. Each of the Covered Parties are express third party beneficiaries of this Agreement and
will be considered parties under and for purposes of this Agreement.
(i) Purchaser
Representative Authorized to Act on Behalf of Covered Parties. The parties acknowledge and agree that from and after the Closing the
Purchaser Representative is authorized and shall have the sole right to act on behalf of Pubco, Purchaser and the other Covered Parties
under this Agreement, including the right to enforce Pubco’s, Purchaser’s and the other Covered Parties’ rights and
remedies under this Agreement. Without limiting the foregoing, in the event that the Subject Party serves as a director, officer, employee
or other authorized agent of a Covered Party, the Subject Party shall have no authority, express or implied, to act or make any determination
on behalf of a Covered Party in connection with this Agreement or any dispute or Action with respect hereto.
(j) Construction.
The Subject Party acknowledges that the Subject Party has been represented by counsel, or had the opportunity to be represented by counsel
of the Subject Party’s choice. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party
will not be applied in the construction or interpretation of this Agreement. Neither the drafting history nor the negotiating history
of this Agreement will be used or referred to in connection with the construction or interpretation of this Agreement. The headings and
subheadings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. In this Agreement: (i) the words “include,” “includes” and “including” when used
herein shall be deemed in each case to be followed by the words “without limitation”; (ii) the definitions contained herein
are applicable to the singular as well as the plural forms of such terms; (iii) whenever required by the context, any pronoun shall include
the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa; (iv) the words “herein,” “hereto,” and “hereby” and other words of similar import shall
be deemed in each case to refer to this Agreement as a whole and not to any particular Section or other subdivision of this Agreement;
(v) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase
“and only if”; (vi) the term “or” means “and/or”; and (vii) any agreement or instrument defined or
referred to herein or in any agreement or instrument that is referred to herein means such agreement or instrument as from time to time
amended, modified or supplemented, including by waiver or consent and references to all attachments thereto and instruments incorporated
therein.
(k) Counterparts.
This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. A photocopy,
faxed, scanned and/or emailed copy of this Agreement or any signature page to this Agreement, shall have the same validity and enforceability
as an originally signed copy.
(l) Effectiveness.
This Agreement shall be binding upon the Subject Party upon the Subject Party’s execution and delivery of this Agreement, but this
Agreement shall only become effective upon the consummation of the Transactions. In the event that the Merger Agreement is validly terminated
in accordance with its terms prior to the consummation of the Transactions, this Agreement shall automatically terminate and become null
and void, and the parties shall have no obligations hereunder.
[Remainder of Page Intentionally Left Blank;
Signature Page Follows]
IN WITNESS WHEREOF, the undersigned
has duly executed and delivered this Non-Competition and Non-Solicitation Agreement as of the date first written above.
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Subject Party: |
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Suradech Taweesaengsakulthai |
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|
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By: |
/s/ Suradech Taweesaengsakulthai |
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Name: |
Suradech Taweesaengsakulthai |
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Title: |
Chief Executive Officer |
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|
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Address for Notice: |
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Arogo Capital Acquisition Corp. |
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848 Brickell Avenue, Penthouse 5 |
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Miami, FL 33131 |
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Attn: Suradech Taweesaengsakulthai |
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Telephone No.: (786) 442-1482 |
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E-mail: suradech@cho.co.th |
{Signature Page to Non-Competition
Agreement}
IN WITNESS WHEREOF, the undersigned
has duly executed and delivered this Non-Competition and Non-Solicitation Agreement as of the date first written above.
| |
Subject Party: |
| |
|
| |
Suthee Chivaphongse |
| |
|
| |
By: |
Suthee Chivaphongse |
| |
Name: |
Suthee Chivaphongse |
| |
Title: |
Chief Financial Officer |
| |
|
| |
Address for Notice: |
| |
c/o Bangkok Tellink Co., Ltd. |
| |
89/2 Building 6, 2nd Floor, Room No. 6203 |
| |
Chaengwattana Road, Thung Song Room |
| |
Lak Si Bangkok 10210, Thailand |
| |
Email: suthee@arogocapital.com |
{Signature Page to Non-Competition
Agreement}
IN WITNESS WHEREOF, the undersigned
has duly executed and delivered this Non-Competition and Non-Solicitation Agreement as of the date first written above.
| |
Subject Party: |
| |
|
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Han Wen (Raymond) Chee |
| |
|
| |
By: |
/s/ Han Wen (Raymond) Chee |
| |
Name: |
Han Wen (Raymond) Chee |
| |
Title: |
Chief Strategy Officer |
| |
|
| |
Address for Notice: |
| |
Arogo Capital Acquisition Corp. |
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848 Brickell Avenue, Penthouse 5 |
| |
Miami, FL 33131 |
| |
Attn: Han Wen (Raymond) Chee |
| |
Email: raymond@arogocapital.com |
{Signature Page to Non-Competition
Agreement}
IN WITNESS WHEREOF, the undersigned
has duly executed and delivered this Non-Competition and Non-Solicitation Agreement as of the date first written above.
| |
Subject Party: |
| |
|
| |
Nisachon Attanamanee |
| |
|
| |
By: |
/s/ Nisachon Attanamanee |
| |
Name: |
Nisachon Attanamanee |
| |
Title: |
Authorized Person |
| |
|
| |
Address for Notice: |
| |
Arogo Capital Acquisition Corp. |
| |
848 Brickell Avenue, Penthouse 5 |
| |
Miami, FL 33131 |
| |
Attn: Nisachon Attanamanee |
| |
Email: nisachon@arogocapital.com |
{Signature Page to Non-Competition
Agreement}
Acknowledged and accepted as of the date
first written above:
| Purchaser: |
|
| |
|
| AROGO CAPITAL ACQUISITION CORP. |
|
| |
|
| By: |
/s/ Suradech Taweesaengsakulthai |
|
| Name: |
Suradech Taweesaengsakulthai |
|
| Title: |
Chief Executive Officer |
|
| |
|
| The Company: |
|
| |
|
| BANGKOK TELLINK CO., LTD. |
|
| |
|
| By: |
/s/ Nusttanakit Sasianon |
|
| Name: |
Nusttanakit Sasianon |
|
| Title: |
Chief Executive Officer |
|
| |
|
| The Purchaser Representative: |
|
| |
|
| Singto, LLC, solely in the capacity as the Purchaser Representative |
|
| |
|
| By: |
/s/ Suradech Taweesaengsakulthai |
|
| Name: |
Suradech Taweesaengsakulthai |
|
| Title: |
Chief Executive Officer |
|
{Signature Page to Non-Competition
Agreement}
Exhibit 10.4
| EXHIBIT B | Execution Version |
SUPPORT AGREEMENT
This SPONSOR SUPPORT AGREEMENT
(this “Agreement”) is made and entered into on as of February 14, 2025, by and among (i) Arogo Capital Acquisition
Corp., a company incorporated in Delaware (together with its successors, the “Purchaser”), (ii) BTL Merger
(Cayman) Ltd., a to-be-formed Cayman Islands exempted company, and a wholly-owned subsidiary of the Company upon execution of a joinder
thereto (“Merger Sub”), and (iii) Singto, LLC, a Delaware limited liability company (“Sponsor”).
Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Merger Agreement (as defined
herein).
WHEREAS, on or about
the date hereof, (i) the Purchaser, (ii) Merger Sub, (iii) the Sponsor, in the capacity as the representative from and after the Effective
Time (as defined in the Merger Agreement) for the stockholders of the Purchaser (other than the Company Security Holders (as defined below)
as of immediately prior to the Effective Time and their successors and assignees) in accordance with the terms and conditions of the Merger
Agreement, (iii) BTL Holdings (Cayman) Limited, upon execution of a joinder agreement to become party to this Agreement, a to-be-formed
Cayman Islands exempted company (“Pubco”), (iv) Mr. Nusttanakit Sasianon and Mr Sawin Laosethakul, solely
in their capacity as the representatives from and after the Effective Time for the Company Shareholders (as defined in the Merger Agreement)
as of immediately prior to the Effective Time in accordance with the terms and conditions of the Merger Agreement, (v) Bangkok Tellink
Co., Ltd., a Bangkok Registered company (the “Company”), entered into that certain Agreement and Plan of
Merger (as amended from time to time in accordance with the terms thereof, the “Merger Agreement”), pursuant
to which, among other matters, the parties thereto intend to effect the merger of Purchaser with and into Merger Sub and Purchaser continuing
as the surviving entity or, alternatively, Purchaser merging with and into Pubco and Purchaser becoming a wholly owned subsidiary of Pubco
(the “Merger”), all upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance
with the applicable provisions of the DGCL, the CCC, and the Cayman Act (each as defined herein), all in accordance with the terms of
the Merger Agreement; and
WHEREAS, as of the
date hereof, Sponsor owns 2,948,650 of Purchaser ordinary shares, par value $0.0001 per share (“the “Purchaser Ordinary
Shares”), all such shares of Purchaser Ordinary Shares, any shares of Purchaser Ordinary Shares of which ownership of record
or the power to vote is hereafter acquired by Sponsor prior to the termination of this Agreement and any all other shares of Purchaser
issued or issuable to Sponsor or acquired thereby after the date hereof, being referred to herein as the “Shares”);
and
WHEREAS, in order to
induce the Company, Purchaser, Pubco, and Merger Sub to enter into the Merger Agreement, Sponsor is executing and delivering this Agreement
to the Company, Purchaser and Merger Sub.
NOW, THEREFORE, in
consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to
be legally bound hereby, the parties hereby agree as follows:
1. Agreement to Vote. Sponsor,
with respect to the Shares, hereby agrees (and agrees to execute such documents or certificates evidencing such agreement as
Purchaser and/or the Company may reasonably request in connection therewith) to vote at the Purchaser Special Meeting (as defined in
the Merger Agreement) and any other meeting of the shareholders of Purchaser, and in any action by written consent of the
shareholders of Purchaser related to any matters contemplated by the Merger Agreement and the Ancillary Documents, all of the Shares
(a) not to transfer or redeem any shares of Purchaser Common Stock held by such Purchaser stockholder in accordance with the Insider
Letter, (b) to vote in favor of this Agreement and the Merger at the Purchaser Special Meeting in accordance with the Insider
Letter, (c) to waive any adjustment to the conversion ratio set forth in the Purchaser Certificate of Incorporation or any other
anti-dilution or similar protection with respect to the former Purchaser Class B Common Stock, which have been converted to Class A Common Stock (whether resulting from the
transactions contemplated hereby, by the Ancillary Documents or by any other transaction consummated in connection with the
transactions contemplated hereby), (d) to vote in favor of any other matter reasonably necessary to the consummation of the
Transactions contemplated by the Merger Agreement and considered and voted upon by the shareholders of Purchaser, (e) in favor of
the approval and adoption of the Merger Sub Equity Incentive Plan, (e) for the appointment, and designation of classes if
applicable, of the members of the Post-Closing Merger Sub Board of Directors, (f) in favor of the issuance of Purchaser Securities
or PIPE Shares in the PIPE Investment, (g) in favor of any amendments required to Purchaser’s Organizational Documents, and
(h) against any action, agreement or transaction (other than the Merger Agreement or the Transactions contemplated thereby) or
proposal that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of Purchaser
under the Merger Agreement or that would reasonably be expected to result in the failure of the Transactions contemplated by the
Merger Agreement from being consummated. Sponsor acknowledges receipt and review of a copy of the Merger Agreement.
2. Transfer
of Shares. Sponsor agrees that it shall not, directly or indirectly, except as otherwise contemplated pursuant to the Merger Agreement,
(a) sell, assign, transfer (including by operation of law), redeem, lien, pledge, distribute, dispose of or otherwise encumber any of
the Shares or otherwise agree to do any of the foregoing (unless the transferee agrees to be bound by this Agreement), (b) deposit any
Shares into a voting trust, enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto
that is inconsistent with this Agreement, (c) enter into any contract, option or other arrangement or undertaking with respect to the
direct or indirect acquisition or sale, assignment, transfer (including by operation of law), redemption or other disposition of any Shares
(unless permitted by the provisions hereof and the transferee agrees in writing to be bound by the terms and conditions of this Agreement)
or (d) take any action that would have the effect of preventing or disabling Sponsor from performing its obligations hereunder.
3. Waiver.
Sponsor hereby waives (and agrees to execute such documents or certificates evidencing such waiver as Purchaser and/or Company may reasonably
request) any adjustment to the conversion ratio set forth in the certificate of incorporation of Purchaser of any other anti-dilution
or similar protection with respect to the Purchaser Ordinary Shares (whether resulting from the transactions contemplated hereby, by the
Merger Agreement or any Ancillary Document or by any other transaction consummated in connection with the transactions contemplated hereby
and thereby).
4. Representations
and Warranties. Sponsor represents and warrants for and on behalf of itself to Purchaser, Merger Sub and the Company as follows:
(a) The
execution, delivery and performance by Sponsor of this Agreement and the consummation by Sponsor of the transactions contemplated hereby
do not and will not (i) conflict with or violate any Law or Order applicable to Sponsor, (ii) require any consent, approval or authorization
of, declaration, filing or registration with, or notice to, any person or entity, (iii) result in the creation of any Lien on any Shares
(other than pursuant to this Agreement, or transfer restrictions under applicable securities laws or Sponsor’s Organizational Documents)
or (iv) conflict with or result in a breach of or constitute a default under any provision of Sponsor’s Organizational Documents.
(b) Sponsor
owns of record and has good, valid and marketable title to the Shares, free and clear of any Lien (other than pursuant to this Agreement
or transfer restrictions under applicable securities Laws or the Organizational Documents of Sponsor) and has the sole power (as currently
in effect) to vote and has the full right, power and authority to sell, transfer and deliver such Shares, and Sponsor does not own, directly
or indirectly, any other shares of Purchaser’s share capital other than the Shares, or any options, warrants or other rights to
acquire any additional ordinary shares of Purchaser, or any security exercisable for or convertible into ordinary shares of Purchaser.
(c) Sponsor
has the power, authority and capacity to execute, deliver and perform this Agreement, and this Agreement has been duly authorized, executed
and delivered by Sponsor.
(d) There
is no Action pending or threatened against Sponsor, or its officers, directors, employees, members, shareholders, interest holders, or
other affiliates that could impair its ability to perform its obligations hereunder or consummate the transactions contemplate by this
Agreement.
5. Other
Covenants and Agreements.
(a) At
or prior to the Effective Time, Sponsor shall deliver to the Company, Purchaser and Merger Sub a duly executed copy of all Ancillary Documents
to which it is a party, including without limitation the Lock-Up Agreement, in the forms attached as Exhibits to the Merger Agreement.
(b) Sponsor
agrees to and shall be bound by and subject to Section 8.6 (No Solicitation), Section 5.14 (Public Announcements), Section 5.15 (Confidential
Information), and Section 9.1 (Waiver of Claims Against Trust) of the Merger Agreement to the same extent as such provisions apply to
the parties to the Merger Agreement as if Sponsor were a direct party thereto.
(c) Sponsor
hereby waives and agrees not to assert or perfect any rights of appraisal or rights to dissent from the Merger or Merger that Sponsor
may have by virtue of ownership of the Shares and agrees not to commence or participate in any claim, derivative or otherwise, against
any party to the Merger Agreement related to the negotiation, execution or delivery of this Agreement, the Merger Agreement or the transactions
contemplated thereby or the Merger.
6. Termination.
This Agreement and the obligations of Sponsor under this Agreement shall automatically terminate upon the earliest of: (a) the Closing;
(b) the termination of the Merger Agreement in accordance with its terms; or (c) the mutual written agreement of the Company, Merger Sub,
the Sponsor and Purchaser. Upon termination or expiration of this Agreement, no party shall have any further obligations or liabilities
under this Agreement; provided, however, such termination or expiration shall not relieve any party from liability for any willful breach
of this Agreement occurring prior to its termination.
7. Miscellaneous.
(a) Except
as otherwise provided herein or in the Merger Agreement or any Ancillary Document, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the
transactions contemplated hereby are consummated.
(b) Notices.
All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when
delivered (i) in person, (ii) by facsimile or other electronic means, with affirmative confirmation of receipt, (iii) one Business Day
after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed,
if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following
addresses (or at such other address for a party as shall be specified by like notice):
|
If to the Sponsor, to:
Singto, LLC
c/o Arogo Capital Acquisition Corp.
848 Brickell Avenue, Penthouse 5
Miami, FL 33131
Attn: Suradech Taweesaengsakulthai
Telephone No.: (786) 442-1482
E-mail: suradech@cho.co.th
|
with
a copy (which will not constitute notice) to:
Rimon, P.C.
1050 Connecticut Ave NW, Suite 500
Washington,
D.C. 20036
Attn: Debbie Klis, Esq.
Telephone No.: +1 202.935.3390
Email: deborrah.klis@rimonlaw.com |
|
If to Purchaser, at or prior to the Closing, to:
Arogo Capital Acquisition Corp.
848 Brickell Avenue, Penthouse 5
Miami, FL 33131
Attn: Suradech Taweesaengsakulthai
Telephone No.: (786) 442-1482
E-mail: suradech@cho.co.th
|
with
a copy (which will not constitute notice) to:
Rimon, P.C.
1050 Connecticut Ave NW, Suite 500
Washington, D.C. 20036
Attn: Debbie Klis, Esq.
Telephone No.: +1 202.935.3390
Email: debbie.klis@rimonlaw.com |
|
If to Merger Sub or Merger Sub after the Closing:
Arogo Capital (BVI) Ltd.
c/o Arogo Capital Acquisition Corp.
848 Brickell Avenue, Penthouse 5
Miami, FL 33131
Attn: Suradech Taweesaengsakulthai
Telephone No.: (786) 442-1482
E-mail: suradech@cho.co.th
|
with a copy (which will not constitute notice) to:
Rimôn PC
1990 K Street, NW Suite 420
Washington, DC 20006
Attn: Debbie Klis, Esq.
Facsimile No.: (202) 935-3390
Telephone No.: (202) 935-3390
Email: debbie.klis@rimonlaw.com |
|
If to the Company or the Surviving Corporation, to:
Bangkok Tellink Co., Ltd.
89/2 Building 6, 2nd Floor, Room No. 6203
Chaengwattana Road, Thung Song Room
Lak Si Bangkok 10210, Thailand
Attn: Mr. Nusttanakit Sasianon, Mr. Sawin Laosethakul
Telephone No.: 02-191-5555
E-mail: nusttanakit.sa@bangkoktellink.co.th, Sawin@S1Winconsultant.com |
with a copy (which will not constitute notice) to:
Araya & Partners Co., Ltd.
973 President Tower, 6th Floor, Room no. 6G
Ploenchit Road, Lumpini, Pathumwan
Bangkok Thailand 10330
Attn: Phatcharapon Sunlakawit
Telephone No.: (+66) 26560606
Mobile Phone No.: (+66) 650593656
E-mail: phatcharapon@aaplaws.com
|
(c) If
any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(d) This
Agreement, the Merger Agreement and the Ancillary Documents constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect
to the subject matter hereof. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise). This
Agreement may not be amended or modified in any respect, except by a written agreement executed by all of the parties hereto.
(e) This
Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
(f) The
parties hereto agree that irreparable damage may occur in the event any provision of this Agreement was not performed in accordance with
the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at
law or in equity. Each of the parties agrees that it shall not oppose the granting of an injunction, specific performance and other equitable
relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at
law or an award of specific performance is not an appropriate remedy for any reason at law or equity. Any party seeking an injunction
or injunctions to prevent breaches or threatened breaches of, or to enforce compliance with this Agreement when expressly available pursuant
to the terms of this Agreement shall not be required to provide any bond or other security in connection with any such Order.
(g) Any
and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent
injunction or other equitable relief or application for enforcement of a resolution under this Section 7(g) arising out of, related to,
or in connection with this Agreement or the transactions contemplated hereby (a “Dispute”) shall be governed
by this Section 7(g). A Party must, in the first instance, provide written notice of any Disputes to the other Parties subject to such
Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The Parties involved in such
Dispute shall seek to resolve the Dispute on an amicable basis within forty-five (45) days of the notice of such Dispute being received
by such other Parties subject to such Dispute (the “Resolution Period”); provided, that if any Dispute would
reasonably be expected to have become moot or otherwise irrelevant if not decided within forty-five (45) days after the occurrence of
such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that cannot be resolved during the Resolution
Period shall immediately be referred to mediation conducted by the Brisbane Supreme Court in Brisbane, Australia. Any Dispute that is
not resolved through mediation may immediately be referred to and finally resolved by arbitration pursuant to the then-existing Expedited
Procedures (as defined in the AAA Procedures) of the Commercial Arbitration Rules (the “AAA Procedures”) of the AAA.
Any Party involved in such Dispute may submit the Dispute to the AAA to commence the proceedings after the Resolution Period. To the extent
that the AAA Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall be conducted
by one arbitrator nominated by the AAA promptly (but in any event within five (5) Business Days) after the submission of the Dispute to
the AAA and reasonably acceptable to each Party subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial
experience arbitrating disputes under acquisition agreements. The arbitrator shall accept his or her appointment and begin the arbitration
process promptly (but in any event within five (5) Business Days) after his or her nomination and acceptance by the Parties subject to
the Dispute. The proceedings shall be streamlined and efficient. The arbitrator shall decide the Dispute in accordance with the substantive
law of the state of New York. Time is of the essence. Each Party subject to the Dispute shall submit a proposal for resolution of the
Dispute to the arbitrator within twenty (20) days after confirmation of the appointment of the arbitrator. The arbitrator shall have the
power to order any Party subject to the Dispute to do, or to refrain from doing, anything consistent with this Agreement, the Ancillary
Documents and applicable Law, including to perform its contractual obligation(s); provided, that the arbitrator shall be limited to ordering
pursuant to the foregoing power (and, for the avoidance of doubt, shall order) the relevant Party (or Parties, as applicable) to comply
with only one or the other of the proposals. The arbitrator’s award shall be in writing and shall include a reasonable explanation
of the arbitrator’s reason(s) for selecting one or the other proposal. The seat of arbitration shall be in New York County, State
of New York. The language of the arbitration shall be English.
(h) This
Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Delaware, without regard to the conflict
of law principles thereof. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any state
or federal court located in Chancery Court of the State of Delaware (or if the Chancery Court of the State of Delaware declines to accept
jurisdiction, any state or federal court within the State of Delaware or in any appellate court thereof or in any appellate courts thereof)
(the “Specified Courts”). Each party hereto hereby (i) submits to the exclusive jurisdiction of any Specified
Court for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto and (ii) irrevocably
waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally
to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is
brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby
may not be enforced in or by any Specified Court. Each party agrees that a final judgment in any Action shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to the
service of the summons and complaint and any other process in any other action or proceeding relating to the transactions contemplated
by this Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such party at the applicable
address set forth in Section 7(b). Nothing in this Section 7(h) shall affect the right of any party to serve legal process
in any other manner permitted by applicable law.
(i) WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 7(i).
(j) This
Agreement may be executed and delivered (including by facsimile or portable document format (pdf) transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
(k) Without
further consideration, each party shall use commercially reasonable efforts to execute and deliver or cause to be executed and delivered
such additional documents and instruments and take all such further action as may be required or advisable to consummate the transactions
contemplated by this Agreement.
(l) This
Agreement shall not be effective or binding upon Sponsor until such time as the Merger Agreement is executed by each of the parties thereto.
(m) If,
and as often as, there are any changes in Purchaser or the Purchaser Ordinary Shares by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization, recapitalization or Merger, or by any other means, equitable adjustment
shall be made to the provisions of this Agreement as may be required and are agreed upon by the parties so that the rights, privileges,
duties and obligations hereunder shall continue with respect to Purchaser, Merger Sub, the Company, the Sponsor and the Shares as so changed.
[Remainder of Page Intentionally Left Blank;
Signature Pages Follow]
IN WITNESS WHEREOF,
each Party hereto has caused this Agreement to be signed and delivered by its respective duly authorized officer as of the date first
written above.
| |
Sponsor: |
| |
|
|
| |
Singto, LLC |
| |
|
|
| |
By: |
/s/ Suradech Taweesaengsakulthai |
| |
|
Name: |
Suradech Taweesaengsakulthai |
| |
|
Title: |
Chief Executive Officer |
| |
|
|
| |
Purchaser: |
| |
|
|
| |
AROGO CAPITAL ACQUISITION CORP. |
| |
|
|
| |
By: |
/s/ Suradech Taweesaengsakulthai |
| |
|
Name: |
Suradech Taweesaengsakulthai |
| |
|
Title: |
Chief Executive Officer |
| |
|
|
| |
The Company: |
| |
|
|
| |
BANGKOK TELLINK CO., LTD. |
| |
|
|
| |
By: |
/s/ Nusttanakit Sasianon |
| |
|
Name: |
Nusttanakit Sasianon |
| |
|
Title: |
Chief Executive Officer |
[Signature Page to Sponsor Support Agreement]
Exhibit 10.5
| Exhibit A | Execution Version |
VOTING AGREEMENT
This VOTING AGREEMENT, dated
as of February 14, 2025 (this “Agreement”), by and among the Arogo Capital Acquisition Corp., a Delaware
corporation (the “Purchaser”), Bangkok Tellink Co., Ltd., a Bangkok Registered company (the “Company”),
and each of the shareholders of the Company whose names appear on the signature pages of this Agreement (each, a “Company
Shareholder” and, collectively, the “Company Shareholders”). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement (as defined herein).
WHEREAS, simultaneously
herewith, the (i) Purchaser, (ii) BTL Merger (Cayman) Ltd., a to-be-formed Cayman Islands exempted company, and a wholly-owned
subsidiary of the Company upon execution of a joinder thereto (“Merger Sub”), (iii) BTL Holdings (Cayman)
Limited, upon execution of a Joinder agreement to become party to this Agreement, a to-be-formed Cayman Islands exempted company (“Pubco”),
(iv) Singto, LLC, a Delaware limited liability company, in the capacity as the representative from and after the Effective Time
(as defined in the Merger Agreement) for the stockholders of the Purchaser (other than the Company Security Holders (as defined in the
Merger Agreement) as of immediately prior to the Effective Time and their successors and assignees) in accordance with the terms and conditions
of the Meger Agreement (the “Purchaser Representative”), (v) Mr. Nusttanakit Sasianon and Mr. Sawin Laosethakul,
solely in their capacity as the representatives from and after the Effective Time for the Company Shareholders (as in defined the Merger
Agreement) as of immediately prior to the Effective Time in accordance with the terms and conditions of the Merger Agreement (the “Seller
Representative”), and (v) the Company have entered into that certain Agreement and Plan of Merger dated as of February
14, 2025 (as amended from time to time in accordance with the terms thereof, the “Merger Agreement”), a copy
of which has been made available to each Company Shareholders, pursuant to which the parties thereto intend to effect the merger of Purchaser
with and into Merger Sub and Purchaser continuing as the surviving entity or, alternatively, Purchaser merging with and into Pubco and
Purchaser becoming a wholly owned subsidiary of Pubco (the “Merger”), all upon the terms and subject to the
conditions set forth in the Merger Agreement and in accordance with the applicable provisions of the DGCL, the CCC, and the Cayman Act
(each as defined herein), all in accordance with the terms of the Merger Agreement;
WHEREAS, as of the
date hereof, each Company Shareholder owns of record the number of equity securities of the Company as set forth opposite such Company
Shareholder’s name on Exhibit A hereto (all such securities and any underlying securities of the Company of which
ownership of record or the power to vote is hereafter acquired by the Company Shareholders prior to the termination of this Agreement
being referred to herein as the “Securities”); and
WHEREAS, in order to
induce the Purchaser, Merger Sub, and the Company to enter into the Merger Agreement, the Company Shareholders are executing and delivering
this Agreement to the Purchaser and the Company.
NOW, THEREFORE, in
consideration of the foregoing and of the mutual covenants and agreements contained herein, and intending to be legally bound hereby,
each of the Company Shareholders (severally and not jointly), the Purchaser and the Company hereby agrees as follows:
1. Agreement
to Vote. Each Company Shareholder, by this Agreement, with respect to its Securities, severally and not jointly, hereby agrees (and
agrees to execute such documents and certificates evidencing such agreement as the Purchaser may reasonably request in connection therewith),
if (and only if) the Approval Condition (as defined below) shall have been satisfied, to vote, at any meeting of the members of the Company,
and in any action by written consent of the members of the Company, all of such Company Shareholder’s Securities (a) in favor of
the approval and adoption of the Merger Agreement, the transactions contemplated by the Merger Agreement and this Agreement, (b) in favor
of any other matter reasonably necessary to the consummation of the transactions contemplated by the Merger Agreement and considered and
voted upon by the stockholders of the Company, (c) in favor of the approval and adoption of the Incentive Plan (as defined in the Merger
Agreement) and (d) against any action, agreement or transaction (other than the Merger Agreement or the transactions contemplated thereby)
or proposal that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or that would reasonably be expected to result in the failure of the transactions contemplated by the Merger
Agreement from being consummated. Each Company Shareholder acknowledges receipt and review of a copy of the Merger Agreement. For purposes
of this Agreement, “Approval Condition” shall mean that the Merger Agreement shall not have been amended or
modified to change the Merger Consideration payable under the Merger Agreement to the Company Shareholders. For the purpose of clarification,
any adjustment to the Merger Consideration pursuant to Section 1.15 of the Merger Agreement shall not constitute an amendment
or modification to the Merger Consideration for purposes of the immediately preceding sentence.
2. Transfer
of Securities. Except as may be required by or permitted in the Merger Agreement, each Company Shareholder, severally and not jointly,
agrees that it shall not, directly or indirectly, (a) sell, assign, transfer (including by operation of law), lien, pledge, dispose of
or otherwise encumber any of the Securities or otherwise agree to do any of the foregoing (unless the transferee agrees to be bound by
this Agreement), (b) deposit any Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or
power of attorney with respect thereto that is inconsistent with this Agreement, (c) enter into any contract, option or other arrangement
or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other
disposition of any Securities (unless the transferee agrees to be bound by this Agreement), or (d) take any action that would have the
effect of preventing or disabling the Company Shareholder from performing its obligations hereunder.
3. Representations
and Warranties. Each Company Shareholder, severally and not jointly, represents and warrants for and on behalf of itself to the Purchaser
as follows:
(a) The
execution, delivery and performance by such Company Shareholder of this Agreement and the consummation by such Company Shareholder of
the transactions contemplated hereby do not and will not (i) conflict with or violate any Law or other Order applicable to such Company
Shareholder, (ii) require any consent, approval or authorization of, declaration, filing or registration with, or notice to, any person
or entity, (iii) result in the creation of any Lien on any Securities (other than pursuant to this Agreement, the Merger Agreement or
transfer restrictions under applicable securities laws or the Organizational Documents of the Company or such Company Shareholder) or
(iv) conflict with or result in a breach of or constitute a default under any provision of such Company Shareholder’s Organizational
Documents.
(b) Such
Company Shareholder owns of record and has good, valid and marketable title to the Securities set forth opposite the Company Shareholder’s
name on Exhibit A free and clear of any Lien (other than pursuant to this Agreement or transfer restrictions under applicable
securities Laws or the Organizational Documents of such Company Shareholder) and has the sole power (as currently in effect) to vote and
the full right, power and authority to sell, transfer and deliver such Securities, and such Company Shareholder does not own, directly
or indirectly, any other Securities.
(c) Such
Company Shareholder has the power, authority and capacity to execute, deliver and perform this Agreement, and that this Agreement has
been duly authorized, executed and delivered by such Company Shareholder.
4. Termination.
This Agreement and the obligations of the Company Shareholders under this Agreement shall automatically terminate upon the earliest of
(a) the Effective Time; (b) the termination of the Merger Agreement in accordance with its terms; or (c) the mutual written agreement
of the Purchaser and the Company. Upon termination or expiration of this Agreement, no party shall have any further obligations or liabilities
under this Agreement; provided, however, such termination or expiration shall not relieve any party from liability for any
willful breach of this Agreement occurring prior to such termination of this Agreement.
5. Miscellaneous.
(a) Except
as otherwise provided herein, in the Merger Agreement or in any Ancillary Document, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the
transactions contemplated hereby are consummated.
(b) All
notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by telecopy or e-mail, or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified in
a notice given in accordance with this Section 5(b)):
If to the Purchaser, to:
Arogo Capital Acquisition Corp.
848 Brickell Avenue, Penthouse 5
Miami, FL 33131
Attn: Suradech Taweesaengsakulthai
Telephone No.: (786) 442-1482
E-mail: suradech@cho.co.th
with a copy to (which shall not constitute notice):
Rimon P.C.
1050 Connecticut Avenue, NW, Suite 500
Washington, DC 20036
Attn: Debbie A. Klis, Esq.
Facsimile No.: (202) 935-3390
Telephone No.: (202) 935-3390
E-mail: debbie.klis@rimonlaw.com
If to the Company, to:
Bangkok Tellink Co., Ltd.
89/2 Building 6, 2nd Floor, Room No. 6203
Chaengwattana Road, Thung Song Room
Lak Si Bangkok 10210, Thailand
Attn: Mr. Nusttanakit Sasianon
Telephone No.: 02-191-5555
E-mail: nusttanakit.sa@bangkoktellink.co.th
with a copy to (which shall not constitute notice):
Araya & Partners Co., Ltd.
973 President Tower, 6th Floor, Room no. 6G
Ploenchit Road, Lumpini, Pathumwan
Bangkok Thailand 10330
Attn: Phatcharapon Sunlakawit
Telephone No.: (+66) 26560606
Mobile Phone No.: (+66) 650593656
E-mail: phatcharapon@aaplaws.com
If to a Company Shareholder, to the address set forth for such
Company Shareholder on the signature page hereof.
(c) If
any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(d) This
Agreement, the Merger Agreement and the Ancillary Documents constitute the entire agreement among the parties with respect to the subject
matter hereof and thereof, and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof and thereof. This Agreement shall not be assigned (whether pursuant to a merger, by operation
of law or otherwise) without the prior written consent of the parties, and any attempt to do so without such consent shall be void ab
initio.
(e) This
Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement. No Company Shareholder shall be liable for the breach of this Agreement by any other Company Shareholder.
(f) The
parties hereto agree that irreparable damage may occur in the event any provision of this Agreement is not performed in accordance with
the terms hereof and that the parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy
at law or in equity. Each of the parties agrees that it shall not oppose the granting of an injunction, specific performance or other
equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate
remedy at law or that an award of specific performance is not an appropriate remedy for any reason at law or equity. Any party seeking
an injunction or injunctions to prevent breaches or threatened breaches of, or to enforce compliance with, this Agreement, when expressly
available pursuant to the terms of this Agreement, shall not be required to provide any bond or other security in connection with any
such Order.
(g) This
Agreement 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 without giving effect to principles or rules of conflict of laws to the extent such principles or rules
would require or permit the application of Laws of another jurisdiction. All actions, suits or proceedings (each an “Action”,
and, collectively, “Actions”), arising out of or relating to this Agreement shall be heard and determined exclusively
in any federal or state court having jurisdiction within the State of Delaware. The parties hereto hereby (i) submit to the exclusive
jurisdiction of federal or state courts within the State of Delaware for the purpose of any Action arising out of or relating to this
Agreement brought by any party hereto, and (ii) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in
any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt
or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper,
or that this Agreement or the transactions contemplated hereunder may not be enforced in or by any of the above-named courts.
(h) This
Agreement may be executed and delivered (including by facsimile or portable document format (pdf) transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
(i) Without
further consideration, each party shall use commercially reasonable efforts to execute and deliver or cause to be executed and delivered
such additional documents and instruments and take all such further action as may be reasonably necessary or desirable to consummate the
transactions contemplated by this Agreement.
(j) This
Agreement shall not be effective or binding upon any Company Shareholder until such time as the Merger Agreement is executed by each of
the parties thereto.
(k) If,
and as often as, there are any changes in the Company or the Company Shareholder’s Securities by way of equity split, dividend,
combination or reclassification, or through merger, consolidation, reorganization, recapitalization or business combination, or by any
other means, equitable adjustment shall be made to the provisions of this Agreement as may be required so that the rights, privileges,
duties and obligations hereunder shall continue with respect to the Company Shareholder and its Securities as so changed.
(l) Each
of the parties hereto hereby waives to the fullest extent permitted by applicable law any right it may have to a trial by jury with respect
to any litigation directly or indirectly arising out of, under or in connection with this Agreement. Each of the parties hereto (i) certifies
that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not,
in the event of litigation, seek to enforce that foregoing waiver and (ii) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement and the transactions contemplated hereby, as applicable, by, among other things, the mutual waivers
and certifications in this Paragraph (l).
[Signature pages follow.]
IN WITNESS WHEREOF,
the parties have executed this Agreement as of the date first written above.
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Chief Executive Officer |
[Signature Page to Voting Agreement]
IN WITNESS WHEREOF,
the parties have executed this Agreement as of the date first written above.
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[Signature Page to Voting Agreement]
EXHIBIT A
COMPANY STOCKHOLDERS
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Exhibit 99.1
Arogo Capital Acquisition Corp. Executes
Business Combination Agreement with Bangkok Tellink Co., Ltd.
~ The proposed transaction represents an equity value on a pro-forma basis
of a total equity value of the combined company of USD350 million ~
~ Bangkok
Tellink Co., Ltd. is an emerging leader in advanced telecommunications, mobile network technology, and Internet of Things (IoT)
solutions ~
~ Leveraging
its successful track record, Bangkok Tellink Co., Ltd. seeks enhanced access to U.S. capital markets to accelerate the rollout of
its next-gen telecommunication technologies, foster broader geographic expansion, and provide increased financial flexibility to advance
research and development efforts ~
Miami, FL and Bangkok, Thailand,
Feb. 18, 2025 (GLOBE NEWSWIRE) -- Arogo Capital Acquisition Corp. (OTC: AOGO), a Delaware special purpose acquisition company
(“Arogo”), and Bangkok Tellink Company Limited, a Thai registered company (“Bangkok Tellink”), today announced
their execution of a definitive business combination agreement (the “Business Combination Agreement”) for a proposed business
combination in a transaction valued at $350 million on February 14, 2025.
The transaction contemplated in the
Business Combination Agreement is expected to result in a newly combined company to be listed on The Nasdaq Global Market. Upon the closing
of the transaction, Bangkok Tellink will continue to be led by its CEO, Mr. Nusttanakit Sasianon. The boards of directors of Bangkok
Tellink and Arogo Capital Acquisition Corp. have unanimously approved the transaction
Bangkok Tellink is a licensed Mobile
Virtual Network Service Operator (“MVNO”) as well as a licensed Mobile Virtual Network Aggregator (“MVNA”) and
offers mobile phone packages across multiple frequencies (e.g., 700MHz, 850MHz, 2100MHz, 2300MHz, and 26GHz) and, under its
“INFINITE” brand, provides a range of services including Smart Solutions, IoT Sim Cards, eSIMs, SMPP (i.e., virtual
SMS), SIP trunk (voice virtual number), and software development.
The eSIM market in Thailand is growing
as it offers convenience for consumers and flexibility for businesses. eSIM technology allows users to switch mobile operators without
changing physical SIM cards and is spearheading a transformative shift in connectivity, promoting Thailand’s progression towards a sophisticated
digital economy. The exploding demand for eSims reflects Thailand’s commitment to expanding its telecommunications infrastructure and
has positioned it as a leader in Southeast Asia.1
Bangkok Tellink is uniquely positioned
to facilitate the growth of Thailand’s digital economy that is driven by the need for enhanced economic competitiveness, improved
public services, and sustainable growth. eSIM technology supports this transformation by simplifying connectivity for businesses and
consumers alike, facilitating more efficient operations, and enhancing the accessibility of digital services across the country
Nusttanakit Sasianon, CEO of Bangkok
Tellink commented, “This is an exciting moment for Bangkok Tellink to expand our business, enhance our product and service
offerings, and accelerate our growth. We are excited to continue to foster this business combination with the Arogo team to generate
attractive value for our shareholders.”
Suradech Taweesaengsakulthai, CEO of Arogo added,
“We’re thrilled to partner with the Bangkok Tellink team to capitalize on their proven track record and support the expansion
of their operations to meet the demand for its services including Smart Solutions, IoT Sim Cards, eSIMs, SMPP (i.e., virtual
SMS), SIP trunk (voice virtual number), and software development. We have strong confidence in Bangkok Tellink’s management team and
business model. We look forward to a successful closing of the business combination.”
The completion of the business combination
is subject to regulatory approvals, the approval of the transaction by the shareholders of Arogo and Bangkok Tellink, and the satisfaction
or waiver of other customary closing conditions. Bangkok Tellink believes that its planned listing, in addition to creating
a capital platform for its development and gaining the attention of investors in the international capital markets, will further promote
Bangkok Tellink’s growth strategy.
Additional information about the business
combination, including a copy of the Business Combination Agreement, will be available in a Current Report on Form 8-K to be filed by
Arogo with the Securities and Exchange Commission (the “SEC”), followed by a Registration Statement on Form F-4 to be filed
by Pubco with the SEC.
| 1 | eSIM Technology: Fueling Thailand’s
Transition to a Digital Economy | Global YO |
Advisors
Rimon P.C. (Washington
D.C.) serves as United States legal counsel to Arogo.
Araya & Partners Co., Ltd. (Bangkok)
serves as legal counsel to Bangkok Tellink Co., Ltd.
ARC Group Limited is acting as sole
financial advisor to Arogo.
About Bangkok Tellink Co., Ltd.
Bangkok
Tellink Co., Ltd, established in 2019, is at the forefront of Thailand’s telecommunications industry. By offering mobile network
infrastructure, IoT devices, E-sim services, and software development, Bangkok Tellink provides integrated solutions that foster connectivity
and productivity. Bangkok Tellink invests in innovation, operational efficiency, and sustainability to position itself as a prominent
telecommunications and technology leader.
About Arogo
Capital Acquisition Corp.
Arogo Capital Acquisition Corp. is a blank check company formed in 2021 for the purpose of effecting a merger,
capital stock exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses.
On December 29, 2021, Arogo consummated an initial public offering of its units that consisted of one share of Class
A common stock and one redeemable warrant. Each whole warrant entitles the holder to purchase one share of Class
A common stock at a price of $11.50 per share, subject to adjustment. For more information, visit www.arogocapital.com.
Important Information and Where to
Find It.
For additional information on the proposed
transaction, see Arogo’s Current Report on Form 8-K, which will be filed concurrently with this press release. In connection with
the proposed transaction, Arogo intends to file relevant materials with the SEC, including a registration statement on Form F-4 by Pubco,
which will include a proxy statement/prospectus, and other documents regarding the proposed transaction. Arogo’s shareholders and
other interested persons are advised to read, when available, the preliminary proxy statement/ prospectus and the amendments thereto
and the definitive proxy statement and documents incorporated by reference therein filed in connection with the proposed business combination,
as these materials will contain important information about Bangkok Tellink and Arogo and the proposed business combination.
Promptly after the Form F-4 is declared
effective by the SEC, Arogo will mail the definitive proxy statement/prospectus and a proxy card to each shareholder entitled to vote
at the meeting relating to the approval of the business combination and other proposals set forth in the proxy statement/prospectus.
Before making any voting or investment decision, investors and shareholders of Arogo are urged to carefully read the entire registration
statement and proxy statement/prospectus, when they become available, and any other relevant documents filed with the SEC, as well as
any amendments or supplements to these documents, because they will contain important information about the proposed transaction. The
documents filed by Arogo with the SEC may be obtained free of charge at the SEC’s website at www.sec.gov, or by directing
a request to Arogo Capital Acquisition Corp., 848 Brickell Avenue, Penthouse 5, Miami, FL 33131.
Participants in the Solicitation
Arogo and certain of its directors,
executive officers and other members of management and employees may, under SEC rules, be deemed to be participants in the solicitation
of proxies from Arogo’s shareholders in connection with the proposed transaction. A list of the names of those directors and executive
officers and a description of their interests in Arogo will be included in the proxy statement/prospectus for the proposed business combination
when available at www.sec.gov.
Information about Arogo’s directors
and executive officers and their ownership of Arogo shares of common stock is set forth in Arogo’s final prospectus for its for
its initial public offering filed with the SEC on December 28, 2021, as modified or supplemented by any Form 3 or Form 4 filed with the
SEC since the date of such filing. Other information regarding the interests of the participants in the proxy solicitation will be included
in the proxy statement/prospectus pertaining to the proposed business combination when it becomes available. These documents can be obtained
free of charge from the source indicated above.
Bangkok Tellink and its directors and
executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of Arogo in connection
with the proposed business combination. A list of the names of such directors and executive officers and information regarding their
interests in the proposed business combination will be included in the proxy statement/prospectus for the proposed business combination.
Additional information regarding the
participants in the proxy solicitation and a description of their direct and indirect interests will be included in the proxy statement/prospectus
to be filed with the SEC on Form F-4. Shareholders, potential investors and other interested persons should read the proxy statement/prospectus
carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from
the sources indicated above.
Cautionary Statement Regarding Forward-Looking
Statements
Certain statements contained in this
press release constitute “forward-looking statements” within the meaning of federal securities laws. Forward-looking statements
may include, but are not limited to, statements with respect to (i) trends in the financial advisory industry, including changes in demand
and supply related to Bangkok Tellink’s products; (ii) Bangkok Tellink’s growth prospects and Bangkok Tellink’s market
size; (iii) Bangkok Tellink’s projected financial and operational performance including relative to its competitors; (iv) new product
and service offerings Bangkok Tellink may introduce in the future; (v) the potential transaction, including the implied enterprise value,
the expected post-closing ownership structure and the likelihood and ability of the parties to consummate the potential transaction successfully;
(vi) the risk the proposed business combination may not be completed in a timely manner or at all, which may adversely affect the price
of Arogo securities; (vii) the failure to satisfy the conditions to the consummation of the proposed business combination, including
the approval of the proposed business combination by the shareholders of Arogo; (viii) the effect of the announcement or pendency of
the proposed business combination on Arogo’s or Bangkok Tellink’s business relationships, performance and business generally;
(ix) the outcome of any legal proceedings that may be instituted against Arogo or Bangkok Tellink related to the proposed business combination
or any agreement related thereto; (x) the ability to maintain the listing of Arogo on OTC; (xi) the price of Arogo’s securities,
including volatility resulting from changes in the competitive and regulated industry in which Bangkok Tellink operates, variations in
performance across competitors, changes in laws and regulations affecting Bangkok Tellink’s business and changes in the combined
capital structure; (xii) the ability to implement business plans, forecasts, and other expectations after the completion of the proposed
business combination and identify and realize additional opportunities; and (xiii) other statements regarding Arogo’s or Bangkok
Tellink’s expectations, hopes, beliefs, intentions and strategies regarding the future.
In addition, any statements that refer
to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions are forward-looking
statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,”
“expect,” “intends,” “outlook,” “may,” “might,” “plan,” “possible,”
“potential,” “predict,” “project,” “should,” “would,” and similar expressions
may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking
statements are predictions, projections and other statements about future events that are based on current expectations and assumptions
and, as a result, are subject, are subject to risks and uncertainties.
You should carefully consider the risks
and uncertainties described in the “Risk Factors” section of Arogo’s final prospectus for its for its initial public
offering filed with the SEC on December 28, 2021, as modified or supplemented by any Form 3 or Form 4 filed with the SEC since the date
of such filing and the proxy statement/prospectus relating to this transaction, which is expected to be filed by Arogo with the SEC,
other documents filed by Arogo from time to time with SEC, and any risk factors made available to you in connection with Arogo, Bangkok
Tellink, and the transaction. These forward-looking statements involve a number of risks and uncertainties (some of which are beyond
the control of Bangkok Tellink and Arogo) and other assumptions, that may cause the actual results or performance to be materially different
from those expressed or implied by these forward-looking statements. Arogo and Bangkok Tellink caution that the foregoing list of factors
is not exclusive.
No Offer or Solicitation
This press release relates to a proposed
business combination between Arogo and Bangkok Tellink, and does not constitute a proxy statement or solicitation of a proxy and does
not constitute an offer to sell or a solicitation of an offer to buy the securities of Arogo or Bangkok Tellink, 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.
Contacts
Arogo Capital Acquisition Corp.
Attn: Ms. Nisachon Rattanamee
Email: nisachon@arogocapital.com
Bangkok Tellink Company Limited
Attn: Daniel Fong
Email: daniel@s1winconsultant.com
Sources
Arogo Capital Acquisition Corp and Bangkok Tellink Company Limited
Arogo Capital Acquisition (PK) (USOTC:AOGOW)
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