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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
July
27, 2023
Date
of Report (Date of earliest event reported)
GENESIS
UNICORN CAPITAL CORP.
(Exact
Name of Registrant as Specified in Charter)
Delaware |
|
001-41287 |
|
85-4283150 |
(State
or Other Jurisdiction
of
Incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
No.) |
281
Witherspoon Street, Suite 120
Princeton,
New Jersey 08540
(Address
of Principal Executive Offices, and Zip Code)
(609)
466-0792
Registrant’s
Telephone Number, Including Area Code
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
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 (see General Instruction A.2. below):
☐ |
Written
communication 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
communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communication 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, $0.0001 par value, and one redeemable warrant |
|
GENQU |
|
The
NASDAQ Stock Market LLC |
Class
A Common Stock, $0.0001 par value |
|
GENQ |
|
The
NASDAQ Stock Market LLC |
Redeemable
warrants, each warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share |
|
GENQW |
|
The
NASDAQ Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405)
or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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.
Forward
Purchase Agreement
As
previously announced, on November 29, 2022, Genesis Unicorn Capital Corp., a Delaware corporation (“Genesis” or “Parent”),
entered into an agreement and plan of merger (the “Merger Agreement”) with ESGL Holdings Limited, a Cayman Islands
exempted company and wholly owned subsidiary of the Parent (“Purchaser” or “PubCo”), ESGH Merger
Sub Corp., a Cayman Islands exempted company and wholly owned subsidiary of Purchaser (“Merger Sub”), Environmental
Solutions Group Holdings Limited, a Cayman Islands exempted company (the “Company” or “ESGL”),
and Quek Leng Chuang, solely in his capacity as the shareholder representative, agent and attorney-in-fact of the shareholders (the “Shareholder
Representative”). Upon the closing of the Business Combination (the “Closing”), Genesis will merge with
and into Purchaser, with Purchaser remaining as the surviving publicly traded entity. The date on which the Closing actually occurs is
hereinafter referred to as the “Closing Date.” The Merger Agreement and the transactions contemplated thereby (the
“Business Combination”) were approved by the boards of directors of each of Genesis and ESGL.
On
July 27, 2023, Genesis, PubCo, and ESGL entered into an agreement (“Forward Purchase Agreement”) with Vellar
Opportunities Fund Master, Ltd. (“Seller”) for an OTC Equity Prepaid Forward Transaction. The primary purpose
of entering into the Forward Purchase Agreements is to provide cash to PubCo following the closing of the Business Combination. For purposes
of the Forward Purchase Agreement, Genesis is referred to as the “Counterparty” prior to the Closing, while PubCo is referred
to as the “Counterparty” after the Closing. Capitalized terms used herein but not otherwise defined shall have the meanings
ascribed to such terms in the Forward Purchase Agreement.
Pursuant
to the terms of the Forward Purchase Agreement, the Seller intends, but is not obligated, to purchase prior to the Closing up to 4,400,000
shares (the “Maximum Number of Shares”) of Class A common stock, par value $0.0001 per share, of Genesis (“Genesis
Class A Common Stock”) from third parties through a broker in the open market. The Number of Shares subject to a Forward Purchase
Agreement is subject to reduction following a termination of the Forward Purchase Agreement with respect to such shares as described
under “Optional Early Termination” in the respective Forward Purchase Agreement.
The
Forward Purchase Agreement provides that the Seller will be paid directly an aggregate cash amount (the “Prepayment Amount”)
equal to the product of (i) the Number of Shares as set forth in the Pricing Date Notice and (ii) the redemption price paid by Genesis
on the Closing Date to holders of its common stock who exercised their redemption rights in connection with the Business Combination
(the “Initial Price”).
The
Counterparty will pay to the Seller the Prepayment Amount required under the Forward Purchase Agreement directly from the Counterparty’s
Trust Account maintained by Continental Stock Transfer and Trust Company holding the net proceeds of the sale of the units in the Genesis’s
initial public offering and the sale of private placement units (the “Trust Account”) no later than the earlier of
(a) one business day after the Closing Date and (b) the date any assets from the Trust Account are disbursed in connection with the Business
Combination.
From
time to time and on any date following the Business Combination (any such date, an “OET Date”), the Seller may, in
its absolute discretion, terminate the Forward Purchase Agreement in whole or in part by providing written notice to the Counterparty
(the “OET Notice”) that specifies the quantity by which the Number of Shares shall be reduced (such quantity, the
“Terminated Shares”). The effect of an OET Notice shall be to reduce the Number of Shares by the number of Terminated
Shares specified in such OET Notice with effect as of the related OET Date. As of each OET Date, the Counterparty shall be entitled to
an amount from the Seller, and the Seller shall pay to the Counterparty an amount, equal to the product of (x) the number of Terminated
Shares and (y) the Reset Price in respect of such OET Date. The Reset Price will initially be the Initial Price, but is subject to reduction
upon a Dilutive Offering Reset.
The
valuation date (the “Valuation Date”) for the Forward Purchase Agreement will be the earliest to occur of (a) the
date that is 24 months after the Closing Date, (b) the date specified by Seller in a written notice to be delivered to the Counterparty
at Seller’s discretion (which Valuation Date shall not be earlier than the day such notice is effective) after the occurrence of
any of (w) a VWAP Trigger Event (x) a Delisting Event, or (y) a Registration Failure and (c) the date specified by Seller in a written
notice to be delivered to Counterparty at Seller’s sole discretion (which Valuation Date shall not be earlier than the day such
notice is effective).
On
the Cash Settlement Payment Date, which is the 30th business days immediately following the last day of the Valuation Period, in the
event the Valuation Date is determined by clause (c) of the paragraph above, Seller shall pay Counterparty a cash amount equal to (1)
the Number of Shares as of the Valuation Date multiplied by (2) the closing price of the Shares on the immediately preceding trading
day.
In
all other cases, Seller shall pay Counterparty a cash amount equal to (1) the Number of Shares as of the Valuation Date, which are registered
for resale under an effective Registration Statement or may be transferred without any restrictions, including the requirement for the
Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable)
or the volume and manner of sale limitations under Rule 144(e), (f) and (g) under the Securities Act, multiplied by the average of the
daily VWAP Price over the Valuation Period less (2) the Settlement Amount Adjustment.
The
Settlement Amount Adjustment is equal to the product of (1) (a) the Maximum Number of Shares less (b) any Terminated Shares as of the
Valuation Date, multiplied by (2) $2.00.
On
one occasion, during the period beginning 30 days after the Closing Date and ending on the Valuation Date, Counterparty may request in
writing that Seller provide it with additional funding of up to $2,000,000, subject to the terms of the Forward Purchase Agreement (the
“Additional Funds”). Seller is also entitled to sell shares of Genesis Class A Common Stock without remitting any
Reset Price to the Counterparty until such time as the aggregate proceeds stated in a notice to Counterparty equals the
Additional Funds.
Seller
has agreed to waive any redemption rights with respect to any Recycled Shares in connection with the Business Combination. Such waiver
may reduce the number of shares of Genesis Class A Common Stock redeemed in connection with the Business Combination, and such reduction
could alter the perception of the potential strength of the Business Combination. Similarly, Seller has agreed not to vote the shares
it purchases pursuant to the Forward Purchase Agreement in favor of the Business Combination. The Forward Purchase Agreement has been
structured, and all activity in connection with such agreement has been undertaken, to comply with the requirements of all tender offer
regulations applicable to the Business Combination, including Rule 14e-5 under the Securities Exchange Act of 1934.
The shares purchased by Seller pursuant to the
Forward Purchase Agreement will have the impact of reducing the number of redemptions in connection with the shareholder vote to approve
the Business Combination, which could alter the perception of the potential strength of the Business Combination.
The
foregoing summary of the Forward Purchase Agreement is qualified in its entirety by reference to the text of the Forward Purchase Agreement,
which is filed as Exhibit 10.1 hereto and is incorporated herein by reference.
Item
7.01. Regulation FD Disclosure.
As
of July 26, 2023, the per share redemption price for each share of Genesis Class A common stock was approximately $10.8055,
and the cash balance of the Trust Account available to pay redemptions was $58,858,616.66.
The
information in this Item 7.01 is furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act,
or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of Genesis
under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report will
not be deemed an admission as to the materiality of any information of the information in this Item 7.01.
Forward-Looking
Statements
This
Current Report on Form 8-K and the documents incorporated by reference herein (this “Current Report”) contain certain
“forward-looking statements” within the meaning of “safe harbor” provisions of the Private Securities Litigation
Reform Act of 1995. Forward-looking statements can be identified by words such as: “target,” “believe,” “expect,”
“will,” “shall,” “may,” “anticipate,” “estimate,” “would,” “positioned,”
“future,” “forecast,” “intend,” “plan,” “project” and other similar expressions
that predict or indicate future events or trends or that are not statements of historical matters. Examples of forward-looking statements
include, among others, statements made in this Current Report regarding the proposed Business Combination contemplated by the Merger
Agreement among GUCC, PubCo, Merger Sub and ESGL, integration plans, expected synergies and revenue opportunities, anticipated future
financial and operating performance and results, including estimates for growth, the expected management and governance of the combined
company and the expected timing of the Merger. Forward-looking statements are neither historical facts nor assurances of future performance.
Instead, they are based only on GUCC and ESGL managements’ current beliefs, expectations and assumptions. Because forward-looking
statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to
predict and many of which are outside of our control. Actual results and outcomes may differ materially from those indicated in the forward-looking
statements. Therefore, you should not rely on any of these forward-looking statements. Important factors that could cause actual results
and outcomes to differ materially from those indicated in the forward-looking statements include, among others, the following: (1) the
occurrence of any event that could give rise to the termination of the Merger Agreement; (2) the outcome of any legal proceedings that
may be instituted against GUCC, the combined company or others; (3) the inability to complete the Business Combination; (4) the failure
to obtain financing to fund the combined company’s operations and growth following the closing of the Business Combination; (5)
the amount of redemption requests made by GUCC’s stockholders; (6) changes to the proposed structure of the Business Combination
that may be required or appropriate as a result of applicable laws; (7) the ability to meet Nasdaq listing standards following the consummation
of the Business Combination; (8) the risk that the Business Combination disrupts current plans and operations of ESGL as a result of
the announcement and consummation of the Business Combination; (9) the ability to recognize the anticipated benefits of the Business
Combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth
profitably, maintain relationships with third parties and partners and retain its management and key employees; (10) costs related to
the Business Combination; (11) changes in applicable laws or regulations; (12) the possibility that ESGL or the combined company may
be adversely affected by other economic, business, regulatory, and/or competitive factors; (13) the availability of capital and ESGL
estimates of expenses; (14) changes in the assumptions underlying ESGL’s expectations regarding its future business or business
model; and (15) and other risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary
Note Regarding Forward-Looking Statements” in the Proxy Statement, and other documents filed or to be filed from time to time with
the SEC by PubCo.
A
further list and description of risks and uncertainties can be found in the Form 10-K and in the Registration Statement that has been
filed with the SEC by PubCo in connection with the proposed transaction, and other documents that the parties may file or furnish with
the SEC, which you are encouraged to read. Any forward-looking statement made by us in this Current Report is based only on information
currently available to GUCC, ESGL and PubCo and speaks only as of the date on which it is made. GUCC, ESGL and PubCo undertake no obligation
to publicly update any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result of
new information, future developments or otherwise, except as required by law.
Item
9.01. Financial Statements and Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, Genesis has duly caused this Report on Form 8-K to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated:
July 27, 2023 |
|
|
|
|
GENESIS
UNICORN CAPITAL CORP. |
|
|
|
|
By: |
/s/
Samuel Lui |
|
Name: |
Samuel
Lui |
|
Title: |
President
and Chief Financial Officer |
|
Exhibit
10.1
Date: |
July
27, 2023 |
|
|
To: |
Genesis
Unicorn Capital Corp., a Delaware corporation (“Genesis”), Environmental Solutions Group Holdings Limited, a Cayman
Islands exempted company (“ESG”) and ESGL Holdings Limited, a Cayman Islands exempted company (“PubCo”). |
|
|
Address: |
281
Witherspoon Street, Suite 120, Princeton, New Jersey 08540 |
|
|
From: |
Vellar
Opportunities Fund Master, Ltd. (“Seller”) |
|
|
Re: |
OTC
Equity Prepaid Forward Transaction |
The
purpose of this agreement (this “Confirmation”) is to confirm the terms and conditions of the transaction (the “Transaction”)
entered into between Seller, Genesis, ESG and PubCo on the Trade Date specified below. In connection with the
transactions contemplated by the Merger Agreement (as defined below), Genesis will merge with and into PubCo, with PubCo remaining as
the surviving publicly traded entity, and ESG will merge with and into ESGH Merger Sub Corp, a Cayman Islands exempted company
(“Merger Sub”), a wholly owned subsidiary of PubCo, with Merger Sub being the
surviving company in the merger as a wholly owned subsidiary of PubCo, (each such transaction and the other transactions contemplated
by the Merger Agreement, collectively, the “Business Combination”). The term “Counterparty”
refers to Genesis until the Business Combination, and then following the Business Combination, to PubCo. Certain terms of the Transaction
shall be as set forth in this Confirmation, with additional terms as set forth in a pricing date notice (the “Pricing Date Notice”)
in the form of Schedule A hereto. This Confirmation, together with the Pricing Date Notice(s), constitutes a “Confirmation”
and the Transaction constitutes a separate “Transaction” as referred to in the ISDA Form (as defined below).
This
Confirmation, together with the Pricing Date Notices, evidences a complete binding agreement between Seller, Genesis, ESG and PubCo as
to the subject matter and terms of the Transaction to which this Confirmation relates and shall supersede all prior or contemporaneous
written or oral communications with respect thereto.
The
2006 ISDA Definitions (the “Swap Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “Equity
Definitions”, and with the Swap Definitions, the “Definitions”), each as published by the International
Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. If there is any inconsistency between the Definitions
and this Confirmation, this Confirmation governs. If, in relation to the Transaction to which this Confirmation relates, there is any
inconsistency between the ISDA Form, this Confirmation (including the Pricing Date Notice), the Swap Definitions and the Equity Definitions,
the following will prevail for purposes of such Transaction in the order of precedence indicated: (i) this Confirmation (including the
Pricing Date Notice(s)); (ii) the Equity Definitions; (iii) the Swap Definitions; and (iv) the ISDA Form.
This
Confirmation, together with the Pricing Date Notice, shall supplement, form a part of, and be subject to an agreement in the form of
the ISDA 2002 Master Agreement (the “ISDA Form”) as if Seller, ESG and Counterparty had executed an agreement in such
form (but without any Schedule except as set forth herein under “Schedule Provisions”) on the Trade Date of the Transaction.
The
terms of the particular Transaction to which this Confirmation relates are as follows.
General
Terms
Type
of Transaction: |
Share
Forward Transaction |
|
|
Trade
Date: |
July
27, 2023 |
|
|
Pricing
Date: |
As
specified in a Pricing Date Notice. |
|
|
Effective
Date: |
Three
trading days (one “Settlement Cycle”) following the Pricing Date. |
|
|
Valuation
Date: |
The
earlier to occur of (a) the date that is 24 months after the date of the closing of the Business Combination (the date of the closing
of the Business Combination, the “Closing Date”) pursuant to the Agreement and Plan of Merger, dated as of November
29, 2022 (as may be amended from time to time, the “Merger Agreement”), by and among Genesis, Merger Sub, PubCo,
ESG and the Shareholder Representative named therein, (b) the date specified by Seller in a written notice to be delivered to Counterparty
at Seller’s sole discretion (which Valuation Date shall not be earlier than the date on which the event that is the subject
of the notice occurred) after the occurrence of any of (w) a VWAP Trigger Event (x) a Delisting Event, or (y) a Registration Failure,
and (c) the date specified by Seller in a written notice to be delivered to Counterparty at Seller’s sole discretion (which
Valuation Date shall not be earlier than the day such notice is effective). The Valuation Date notice will become effective immediately
upon its delivery from Seller to Counterparty in accordance with this Confirmation. In the event the Valuation Date is determined
pursuant to clause (c), the Settlement Amount Adjustment will not apply in calculation of the Settlement Amount. |
VWAP
Trigger Event: |
An
event that occurs if the VWAP Price, for any 20 trading days during a 30 consecutive trading day-period, is below $1.00 per share. |
|
|
VWAP
Price: |
For
any scheduled trading day, the volume weighted average price per Share for such day as reported on the relevant Bloomberg Screen
“GENQ <Equity> AQR SEC” (or any successor thereto), or if such price is not so reported on such trading day for
any reason or is erroneous, the VWAP Price shall be as reasonably determined by the Calculation Agent. |
|
|
Reset
Price: |
The
Initial Price; provided, that the Reset Price will be reduced upon a Dilutive Offering Reset. |
|
|
Dilutive
Offering Reset: |
To the extent the Counterparty, after the date hereof,
sells, enters any agreement to sell or grants any right to reprice, or otherwise disposes of or issues (or announce any offer, sale,
grant or any option to purchase or other disposition) any Shares or any securities of the Counterparty or any of its respective subsidiaries
that entitle the holder thereof to acquire or sell on behalf of the Counterparty at any time Shares or other securities (including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Shares or other securities) at an effective
price per share less than the then existing Reset Price, then the Reset Price shall be modified to equal such reduced price as of
such date; provided, that without limiting the foregoing, a Dilutive Offering Reset, for the avoidance of doubt, shall include any
at the market offering, equity line of credit or other similar financing. In the event that the Counterparty in respect of the Shares
engages in a stock split, a reverse stock split or pays dividends in the form of Shares (each, a “Dilutive Issuance”),
the Reset Price shall be adjusted to reflect the effect of the Dilutive Issuance. This provision shall not apply to (i) any grants
or issuances of equity awards (or Shares underlying such equity awards) under the Counterparty’s or the Target’s equity
compensation plans, (ii) any Shares issued in connection with the Business Combination pursuant to or as contemplated by the Merger
Agreement and disclosed in the proxy statement filed by Counterparty in respect of the Business Combination as of the date hereof,
or (iii) the Promissory Note with Genesis’s sponsor for an aggregate amount of $3,150,000, which, at the sponsor’s discretion,
may be converted at a conversion price of $10.00, into 315,000 shares of Genesis Class A Common Stock and 315,000 PubCo warrants. |
|
|
Seller: |
Seller. |
|
|
Buyer: |
Counterparty. |
|
|
Shares: |
Prior
to the closing of the Business Combination, shares of the Class A common stock, par value $0.0001 per share, of Genesis (Ticker:
“GENQ”) and, after the closing of the Business Combination, ordinary shares, par value $0.0001 per share, of the
Counterparty. |
|
|
Number
of Shares: |
The
sum of (i) the number of Recycled Shares plus (ii) the number of Additional Shares, less (iii) the Number of Shares Adjustment; provided,
that (i) plus (ii), less (iii) shall in no event be greater than the Maximum Number of Shares. The Number of Shares is subject to
reduction only as described under “Optional Early Termination” or “Transfer or Assignment.” |
|
|
Maximum
Number of Shares: |
4,400,000
Shares; upon the occurrence of a Dilutive Offering Reset, a number of Shares equal to (i) 4,400,000, times (ii) (a) Initial Price,
divided by (b) the price of such Dilutive Offering. For the avoidance of doubt, any adjustment pursuant to a Dilutive Offering Reset
shall only result in an increase to the Maximum Number of Shares. |
Initial
Price: |
Equals
the per share Redemption Price paid by Genesis on the Closing Date to holders of its common stock who exercised their redemption
rights in connection with the Business Combination. |
|
|
Recycled
Shares: |
The
number of Shares purchased by Seller from third parties (other than Counterparty) through a broker in the open market (including
through nonredeeming holders); provided, that Seller shall have irrevocably waived all redemption rights with respect to such Shares
as provided below in the section captioned “Transactions by Seller in the Shares.” Seller shall specify the number of
Recycled Shares (the “Number of Recycled Shares”) in the initial Pricing Date Notice. |
|
|
Additional
Shares: |
The
Seller may purchase Additional Shares from the Counterparty, in Seller’s sole discretion, for no additional consideration,
with such number of Shares to be specified in a Pricing Date Notice as Additional Shares; provided, that the number of Additional
Shares that Seller may purchase from the Counterparty shall not exceed (x) the Maximum Number of Shares, minus (y) the Recycled Shares,
plus (z) the Number of Shares Adjustment. For the avoidance of doubt, any Additional Shares purchased by Seller will not be included
in the Number of Shares for purposes of determining the Prepayment Amount but will be included in the Number of Shares for all other
purposes and thus may increase the amount owed to Counterparty by Seller as described in the section entitled Settlement Amount. |
|
|
Prepayment
Amount: |
A
cash amount equal to the product of (i) the Number of Recycled Shares as set forth in a Pricing Date Notice and (ii) the Initial
Price. |
|
|
Prepayment: |
Subject
to Counterparty receiving a Pricing Date Notice, Counterparty will pay the Prepayment Amount by bank wire in immediately available
funds to an account designated by Seller from the Counterparty’s Trust Account maintained by Continental Stock Transfer and
Trust Company holding the net proceeds of the sale of the units in Counterparty’s initial public offering and the sale of private
placement warrants (the “Trust Account”), no later than the earlier of (a) one Local Business Day after the Closing
Date and (b) the date any assets from the Trust Account are disbursed in connection with the Business Combination.
Counterparty
shall provide (i) notice to Counterparty’s trustee of the entrance into this Confirmation no later than one Local Business
Day following the date hereof, with copy to Seller and Seller’s outside legal counsel, and (ii) Seller and Seller’s outside
legal counsel, a final draft of the flow of funds from the Trust Account one Local Business Day prior to the closing of the Business
Combination itemizing the Prepayment Amount due to Seller; provided, that Seller shall be invited and permitted to attend any closing
call in connection with the Business Combination. |
|
|
Variable
Obligation: |
Not
applicable. |
|
|
Exchanges: |
The
Nasdaq Stock Market |
|
|
Related
Exchange(s) |
All
Exchanges |
|
|
Payment
Dates: |
Following
the Business Combination, the last day of each calendar month or, if such date is not a Local Business Day, the next following Local
Business Day, until the Valuation Date. |
|
|
Reimbursement
of Legal Fees and Other Expenses: |
Together
with the Prepayment Amount, Counterparty shall pay to Seller an amount equal to (a) the reasonable and documented attorney fees and
other reasonable out-of-pocket expenses related thereto actually incurred by Seller or its affiliates in connection with this Transaction,
not to exceed $25,000 in the aggregate and (b) expenses actually incurred in connection with the acquisition of the Shares in an
amount not to exceed $0.05 per Share. |
Settlement
Terms |
|
|
|
Settlement
Method Election: |
Not
Applicable. |
|
|
Settlement
Method: |
Cash
Settlement. |
|
|
Settlement
Amount: |
In
the event the Valuation Date is determined by clause (c) of the above section entitled Valuation Date, a cash amount equal to (1)
the Number of Shares as of the Valuation Date, multiplied by (2) the closing price of the Shares on the Exchange Business Day immediately
preceding the Valuation Date.
In
all other cases, a cash amount equal to (1) (a) the Number of Shares as of the Valuation Date (taking into account the Number of
Shares Adjustment) multiplied by (b) the volume weighted average of the daily VWAP Price over the Valuation Period, less (2)
the Settlement Amount Adjustment; provided, that if Seller has delivered a Registration Request at least 90 days prior to the Valuation
Date (other than where the Valuation Date results from the occurrence of clause (a) in the definition of Registration Failure), then
the Number of Shares shall only include Shares that are registered for resale under an effective Registration Statement or that may
be transferred without any restrictions (including the requirement for the Counterparty to be in compliance with the current public
information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or the volume and manner of sale limitations under Rule
144(e), (f) and (g) under the Securities Act).
Unless
the Valuation Date is determined by clause (c) of the above section entitled “Valuation Date,” in the event that Seller
has delivered a Registration Request at least 90 days prior to the Valuation Date (other than where the Valuation Date results from
the occurrence of clause (a) in the definition of Registration Failure), Shares that are neither registered for resale under an effective
Registration Statement nor transferable without any restrictions (including the requirement for the Counterparty to be in compliance
with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or the volume and manner of
sale limitations under Rule 144(e), (f) and (g) under the Securities Act) will not be included in the calculation of the Settlement
Amount. |
|
|
Settlement
Amount Adjustment: |
A
cash amount equal to the product of (1) (a) the Maximum Number of Shares less (b) any Terminated Shares as of the Valuation Date,
multiplied by (2) $2.00. |
|
|
Number
of Shares Adjustment: |
A
number of Shares provided in a Number of Shares Adjustment Notice by Seller with aggregate proceeds equal to the Additional
Funds Seller provided pursuant to a Funding Election. |
|
|
Valuation
Period: |
The
period commencing on the first Exchange Business Day immediately following Valuation Date (or if the Valuation Date is not an Exchange
Business Day, the first Exchange Business Day thereafter) and ending at 4:00pm on the Exchange Business Day on which 10% of the total
volume traded in the Shares over the period has reached an amount equal to the Number of Shares outstanding as of the Valuation Date,
excluding any volumes traded during the opening and closing auctions (including any reopenings pursuant to a suspension in trading
or other extraordinary event). |
|
|
Settlement
Currency: |
USD. |
|
|
Cash
Settlement Payment Date: |
The
30th Local Business Day immediately following the last day of the Valuation Period. For the avoidance of doubt, the Seller will remit
to the Counterparty on the Cash Settlement Payment Date an amount equal to the Settlement Amount and will not otherwise be required
to return to the Counterparty any of the Prepayment Amount; provided, that if the Settlement Amount is a negative number neither
the Seller nor the Counterparty shall be liable to the other party for any payment under this section. |
Excess
Dividend Amount: |
Ex
Amount. |
|
|
Optional
Early Termination: |
From
time to time and on any date following the Business Combination and following an OET Notice regarding Recycled Shares or Additional
Shares (any such date, an “OET Date”) and subject to the terms and conditions below, Seller may, in its absolute
discretion, terminate the Transaction in whole or in part by providing written notice to Counterparty (the “OET Notice”),
that specifies the quantity of Shares and the amount by which the Number of Shares shall be reduced (such quantity, the “Terminated
Shares”). For the avoidance of doubt, “Terminated Shares” includes only Shares specified in an OET Notice,
and does not include any other Shares, whether or not sold, that the Seller does not elect to include in an OET Notice, and no such
shares will be included in the definition of Terminated Shares or included when calculating the number of Terminated Shares. The
effect of an OET Notice shall be to reduce the Number of Shares by the number of Terminated Shares specified in the OET Notice with
effect as of the relevant OET Date. As of each OET Date, Counterparty shall be entitled to an amount from Seller, and the Seller
shall pay to Counterparty an amount, equal to the product of (x) the number of Terminated Shares and (y) the Reset Price in respect
of such OET Date (an “Early Termination Obligation”). Seller shall pay each Early Termination Obligation to an
account designated by Counterparty on the first Payment Date following the OET Date. The remainder of the Transaction, if any, shall
continue in accordance with its terms. For the avoidance of doubt, no other amounts as may be set forth in Section 16.1 and 18.1
of the Swap Definitions shall be due to Counterparty upon an Optional Early Termination. |
|
|
Funding
Election: |
On
one occasion, during the period beginning 30 days after the Closing Date and ending on the Valuation Date, Counterparty may request
in writing that Seller provide it with additional funding of up to $2,000,000, in which case, Seller shall provide such funds (the
“Additional Funds”) to an account designated by Counterparty no later than two Local Business Days after the date
of such request; provided, that once Seller has delivered a Registration Request, then Counterparty cannot deliver a request in respect
of a Funding Election until one Settlement Cycle after the date the Registration Statement becomes effective. |
Share
Registration: |
Within
30 days after receipt of a written request of Seller (the “Registration Request”), which request may be made no
earlier than the Trade Date (as defined above) and no later than the Valuation Date, Counterparty shall file (at Counterparty’s
sole cost and expense) with the U.S. Securities and Exchange Commission (the “Commission”) a registration statement
registering the resale of all shares held by the Seller, including the Recycled Shares and any Additional Shares (the “Registration
Statement”), and have the Registration Statement declared effective as soon as practicable after the filing thereof, but
no later than the earliest of (i) the 60th calendar day (or 90th calendar day if the Commission notifies the Counterparty that it
will “review” the Registration Statement) following the date of the Registration Request and (ii) the 1st Local Business
Day after the date the Counterparty is notified (orally or in writing, whichever is earlier) by the Commission that such Registration
Statement will not be “reviewed” or will not be subject to further review. Upon notification by the Commission that the
Registration Statement has been declared effective by the Commission, within two Local Business Days thereafter, the Counterparty
shall file the final prospectus under Rule 424 of the Securities Act of 1933, as amended containing a “plan of distribution”
reasonably agreeable to Seller.
Counterparty
shall not identify Seller as a statutory underwriter in the Registration Statement unless requested by the Commission. In the event
that Seller is identified as a statutory underwriter, Counterparty will afford the Seller the ability to conduct standard due diligence
of Counterparty, including a review of documents, meetings with management and the delivery of a customary comfort letter from the
Counterparty’s auditors. The Counterparty will use its reasonable best efforts to keep the Registration Statement covering
the resale of the shares as described above continuously effective (except for customary blackout periods, up to twice per year and
for a total of up to 10 calendar days (and not more than 5 calendar days in an occurrence), if and when the Counterparty is in possession
of material non-public information the disclosure of which, in the good faith judgment of the Counterparty’s board of directors,
would be prejudicial, and the Counterparty agrees to promptly notify Seller of any such blackout determination) until all such shares
have been sold or may be transferred without any restrictions, including the requirement for the Counterparty to be in compliance
with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or the volume and manner of
sale limitations under Rule 144(e), (f) and (g) under the Securities Act; provided, that Counterparty covenants and agrees to make
all necessary filings, amendments, supplements and submissions in furtherance of the foregoing, including to register all of Seller’s
Shares for resale; provided, further, that it shall be a “Registration Failure” if (a) the Counterparty does not
file a Registration Statement covering all of the shares by the deadline described above in this section, or (b) the Registration
Statement is not declared effective by the deadlines described above in this section or (c) the Registration Statement, after it
is declared effective, ceases to be continuously effective as described above (including in respect of Blackout Periods).
Seller
will promptly deliver customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or
its transfer agent in connection with the Registration Statement, including those related to selling shareholders, and to respond
to SEC comments. If requested by Seller, the Counterparty shall remove or instruct its transfer agent to remove any restrictive legend
with respect to transfers under the Securities Act from any and all Shares held by Seller if (1) the Registration Statement is and
continues to be effective under the Securities Act, (2) such Shares are sold or transferred pursuant to Rule 144 under the Securities
Act (subject to all applicable requirements of Rule 144 being met), or (3) such Shares are eligible for sale under Rule 144, without
the requirement for the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule
144(i)(2), if applicable) or the volume and manner of sale limitations under Rule 144(e), (f) and (g) under the Securities Act; provided,
that Seller shall have timely provided customary representations and other documentation reasonably acceptable to the Counterparty,
its counsel and/or its transfer agent in connection therewith. Any reasonable and documented fees (with respect to the transfer agent,
Counterparty’s counsel or otherwise) associated with the issuance of any legal opinion required by the Counterparty’s
transfer agent or the removal of such legend shall be borne by the Counterparty. If a legend is no longer required pursuant to the
foregoing, the Counterparty will, no later than two Local Business Days following the delivery by Seller to the Counterparty or the
transfer agent (with notice to the Counterparty) of customary representations and other documentation reasonably acceptable to the
Counterparty, its counsel and/or its transfer agent, remove the restrictive legend related to the book entry account holding the
Shares and make a new, unlegended book entry for the Shares. |
|
|
Share
Adjustments |
|
|
|
Method
of Adjustment: |
Calculation
Agent Adjustment. |
|
|
Extraordinary
Events: |
|
|
|
Consequences
of Merger Events involving Counterparty: |
|
|
|
Share-for-Share:
|
Calculation
Agent Adjustment. |
|
|
Share-for-Other: |
Cancellation
and Payment. |
Share-for-Combined: |
Component
Adjustment. |
|
|
Tender
Offer: |
Applicable;
provided, however, that Section 12.1(d) of the Equity Definitions is hereby amended by (i) replacing the reference therein
to “10%” with “25%” and (ii) adding “, or of the outstanding Shares,” before “of the Issuer”
in the fourth line thereof. Sections 12.1(e) and 12.1(l)(ii) of the Equity Definitions are hereby amended by adding “or Shares,
as applicable,” after “voting Shares”. |
|
|
Consequences
of Tender Offers: |
|
|
|
Share-for-Share: |
Calculation
Agent Adjustment. |
|
|
Share-for-Other: |
Calculation
Agent Adjustment. |
|
|
Share-for-Combined: |
Calculation
Agent Adjustment. |
|
|
Composition
of Combined Consideration: |
Not
Applicable. |
|
|
Nationalization,
Insolvency or Delisting: |
Cancellation
and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity
Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately
re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the Nasdaq Global Select Market, Nasdaq Capital Market or
the Nasdaq Global Market (or their respective successors) or such other exchange or quotation system which, in the determination
of the Calculation Agent, has liquidity comparable to the aforementioned exchanges; if the Shares are immediately re-listed, re-traded
or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange. |
|
|
Business
Combination Exclusion: |
Notwithstanding
the foregoing or any other provision herein, the parties agree that the Business Combination shall not constitute a Merger Event,
Tender Offer, Delisting or any other Extraordinary Event hereunder. |
|
|
Additional
Disruption Events: |
|
(a)
Change in Law: |
Applicable;
provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by adding the words “(including, for the
avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)”
after the word “regulation” in the second line thereof. |
|
|
(b)
Failure to Deliver: |
Not
Applicable. |
|
|
(c)
Insolvency Filing: |
Applicable. |
|
|
(d)
Hedging Disruption: |
Not
Applicable. |
|
|
(e)
Increased Cost of Hedging: |
Not
Applicable. |
|
|
(f)
Loss of Stock Borrow: |
Not
Applicable. |
|
|
(g)
Increased Cost of Stock Borrow: |
Not
Applicable. |
|
|
Determining
Party: |
For
all applicable events, Seller, unless (i) an Event of Default, Potential Event of Default or Termination Event has occurred and is
continuing with respect to Seller, or (ii) if Seller fails to perform its obligations as Determining Party, in which case a Third
Party Dealer (as defined below) in the relevant market selected by Counterparty will be the Determining Party. When making any determination
or calculation as “Determining Party”, Seller shall be bound by the same obligations relating to required acts of the
Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if Determining Party were the Calculation
Agent. |
Additional
Provisions: |
|
|
|
Calculation
Agent: |
Seller,
unless (i) an Event of Default, Potential Event of Default or Termination Event has occurred and is continuing with respect to Seller,
or (ii) if Seller fails to perform its obligations as Calculation Agent, in which case an unaffiliated leading dealer in the relevant
market selected by Counterparty in its sole discretion will be the Calculation Agent.
In
the event that a party (the “Disputing Party”) does not agree with any determination made (or the failure to make
any determination) by the Calculation Agent or the Determining Party, the Disputing Party shall have the right to require that the
Calculation Agent or the Determining Party, as applicable, have such determination reviewed by a disinterested third party that is
a dealer in derivatives of the type that is the subject of the dispute and that is not an Affiliate of either party (a “Third
Party Dealer”). Such Third Party Dealer shall be jointly selected by the parties within one Local
Business Day after the Disputing Party’s exercise of its rights hereunder (once selected, such Third Party Dealer shall
be the “Substitute Calculation Agent” or “Substitute Determining Party,” as applicable). If
the parties are unable to agree on a Substitute Calculation Agent or Substitute Determining Party, as applicable, within the prescribed
time, each of the parties shall elect a Third Party Dealer and such two dealers shall agree on a Third Party Dealer by the end of
the subsequent Local Business Day. Such Third Party Dealer shall be deemed to be the
Substitute Calculation Agent or Substitute Determining Party, as applicable. Any exercise by the Disputing Party of its rights hereunder
must be in writing and shall be delivered to the Calculation Agent or Determining Party, as applicable, not later than the third
Local Business Day following the Local
Business Day on which the Calculation Agent or Determining Party, as applicable, notifies the Disputing Party of any determination
made (or of the failure to make any determination). Any determination by the Substitute Calculation Agent or Substitute Determining
Party, as applicable, shall be binding in the absence of manifest error and shall be made as soon as possible but no later than the
second Local Business Day following the Substitute Calculation Agent’s or Substitute
Determining Party’s, appointment, as applicable. The costs of such Substitute Calculation Agent or Substitute Determining Party,
as applicable, shall be borne by (a) the Disputing Party if the Substitute Calculation Agent or Substitute Determining Party, as
applicable, substantially agrees with the Calculation Agent or Determining Party, or (b) the non-Disputing Party if the Substitute
Calculation Agent or Substitute Determining Party, as applicable, does not substantially agree with the Calculation Agent or Determining
Party, as applicable. If, after following the procedures and within the specified time frames set forth above, a binding determination
is not achieved, the original determination of the Calculation Agent or Determining Party, as applicable, shall apply.
Following
any adjustment, determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty (which may
be by email), the Calculation Agent will promptly (but in any event within five Exchange Business Days) provide to Counterparty by
email to the email address provided by Counterparty in such written request a report (in a commonly used file format for the storage
and manipulation of financial data) displaying in reasonable detail the basis for such adjustment, determination or calculation (including
any quotations, market data or information from internal or external sources, and any assumptions used in making such adjustment,
determination or calculation), it being understood that in no event will the Calculation Agent be obligated to share with Counterparty
any proprietary or confidential data or information or any proprietary or confidential models used by it in making such adjustment,
determination or calculation or any information that is subject to an obligation not to disclose such information. All calculations
and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner, and the Calculation
Agent may consider the effect of exceptional circumstances (for example, trading suspensions) in making its calculations. |
Non-Reliance: |
Applicable. |
|
|
Agreements
and Acknowledgements Regarding Hedging Activities: |
Applicable. |
|
|
Additional
Acknowledgements: |
Applicable. |
|
|
Schedule
Provisions: |
|
|
|
Specified
Entity: |
In
relation to both Seller and Counterparty for the purpose of:
Section
5(a)(v), Not Applicable
Section
5(a)(vi), Not Applicable
Section
5(a)(vii), Not Applicable |
|
|
Cross-Default |
The
“Cross-Default” provisions of Section 5(a)(vi) of the ISDA Form will not apply to either party. |
|
|
Credit
Event Upon Merger |
The
“Credit Event Upon Merger” provisions of Section 5(b)(v) of the ISDA Form will not apply to either party. |
|
|
Automatic
Early Termination: |
The
“Automatic Early Termination” of Section 6(a) of the ISDA Form will not apply to either party. |
|
|
Other
Events of Early Termination |
Notwithstanding
anything to the contrary herein, in the Definitions or in the ISDA Form, if the Business Combination does not close and the Shares
are redeemed pursuant to a SPAC liquidation and Reimbursement, this Transaction shall automatically terminate as of the time when
redemptions are first effected without any amounts or other obligations being owed by either party to the other hereunder except
for the payment by Counterparty to Seller of any amounts owing pursuant to “Reimbursement of Legal Fees and Other Expenses”
herein. |
|
|
Termination
Currency: |
United
States Dollars. |
|
|
Additional
Termination Events:
| Will apply to Seller. The occurrence of any of the following events shall constitute an Additional Termination Event in respect of which Seller shall be the Affected Party. |
|
(a) | the
Merger Agreement is terminated pursuant to its
terms prior to the closing of the Business Combination; and |
|
(b) |
upon
written notice from Seller if the closing of the Business
Combination
does not occur within 14 calendar days after the date of
this
Confirmation.
|
|
Notwithstanding
anything to the contrary herein, in the Definitions or in the ISDA Form, if an Early Termination
Date is designated as a result of an Additional Termination Event, then this Transaction
will terminate as of such Early Termination Date without any amounts or other obligations
being owed by either party to the other hereunder, other than with respect to the terms set
forth above under “Reimbursement of Legal Fees and Other Expenses” and below
under “g. Waiver”. For the avoidance of doubt, the waiver of redemption rights
included in this Confirmation will no longer be in force upon an Early Termination Date.
Notwithstanding the foregoing, Counterparty’s obligations set forth under the captions, “Reimbursement of Legal Fees and Other Expenses,” and “Other Provisions — (4) Indemnification” shall survive any termination due to the occurrence of either of the foregoing Additional Termination Events. |
|
|
Governing
Law: |
New
York law (without reference to choice of law doctrine other than Sections 5-1401 and 5-1402 of the General Obligations Law). |
|
|
Forum: |
The
courts of the State of New York located in New York County and the United States District Court for the Southern District of New
York. |
|
|
Credit
Support Provider: |
With
respect to Seller and Counterparty, None. |
|
|
Local
Business Days: |
Seller
specifies the following places for the purposes of the definition of Local Business Day as it applies to it: New York. Counterparty
specifies the following places for the purposes of the definition of Local Business Day as it applies to it: New York. |
Representations,
Warranties and Covenants
1. | Each
of Genesis, ESG, PubCo and Seller represents and warrants to, and covenants and agrees with,
the other as of the date on which it enters into the Transaction that (in the absence of
any written agreement between the parties that expressly imposes affirmative obligations
to the contrary for the Transaction) as follows. |
| a. | Non-Reliance.
It is acting for its own account, and it has made its own independent decisions to enter
into the Transaction and as to whether the Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such advisers as it has deemed necessary. It is
not relying on any communication (written or oral) of the other party as investment advice
or as a recommendation to enter into the Transaction, it being understood that information
and explanations related to the terms and conditions of the Transaction will not be considered
investment advice or a recommendation to enter into the Transaction. No communication (written
or oral) received from the other party will be deemed to be an assurance or guarantee as
to the expected results of the Transaction. |
| b. | Assessment
and Understanding. It is capable of assessing the merits of and understanding (on its
own behalf or through independent professional advice), and understands and accepts, the
terms, conditions and risks of the Transaction. It is also capable of assuming, and assumes,
the risks of the Transaction. |
| c. | Non-Public
Information. It is in compliance with Section 10(b) under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”). |
| d. | Eligible
Contract Participant. It is an “eligible contract participant” under, and
as defined in, the Commodity Exchange Act (7 U.S.C. § 1a(18)) and CFTC regulations (17
CFR § 1.3). |
| e. | Tax
Characterization. It shall treat the Transaction as a derivative financial contract for
U.S. federal income tax purposes, and it shall not take any action or tax return filing position
contrary to this characterization, except to the extent otherwise required by a “determination”
within the meaning of Section 1313 of the Internal Revenue Code of 1986, as amended, or any
similar provision of state, local or foreign law. |
| f. | Private
Placement. It (i) is an “accredited investor” as such term is defined in
Regulation D as promulgated under the Securities Act, (ii) is entering into the Transaction
for its own account without a view to the distribution or resale thereof and (iii) understands
that the assignment, transfer or other disposition of the Transaction has not been and will
not be registered under the Securities Act. |
| g. | Investment
Company Act. It is not and, after giving effect to the Transaction, will not be required
to register as an “investment company” under, and as such term is defined in,
the Investment Company Act of 1940, as amended. |
| h. | Authorization.
The Transaction, including this Confirmation, has been entered into pursuant to authority
granted by its board of directors or other governing authority. It has no internal policy,
whether written or oral, that would prohibit it from entering into any aspect of the Transaction,
including, but not limited to, the purchase of Shares to be made in connection therewith. |
| i. | Affiliate
Status. It is the intention of the parties hereto that Seller shall not be an “affiliate”
(as such term is defined in Rule 405 under the Securities Act) of Genesis, ESG, PubCo or
Merger Sub, following the closing of the Business Combination, as a result of the transactions
contemplated hereunder. Counterparty represents that the Transaction and the Business Combination,
if consummated as contemplated by this Confirmation and the Merger Agreement and as described
in the Proxy Statement, will not cause Seller to be an affiliate of Counterparty. |
2. | Counterparty
represents and warrants to, and covenants and agrees with, Seller as of the date on which
it enters into the Transaction as follows. |
| a. | Total
Assets. Genesis has as of the date hereof, and expects to have as of the closing of the
Business Combination, total assets of at least USD $5,000,001. Additionally, Counterparty
shall publicly disclose on a Form 8-K prior to the closing of the Business Combination the
cash balance of the Trust Account available to pay redemptions, as of the business day immediately
prior to the date of filing of such Form 8-K. |
| b. | Non-Reliance.
Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges
that Seller is not making any representations or warranties or taking any position or expressing
any view with respect to the treatment of the Transaction under any accounting standards. |
| c. | Solvency.
Each of Counterparty and ESG is, and shall be as of the Closing Date and as of the date of
any payment or delivery by Counterparty under the Transaction, solvent and able to pay its
debts as they come due, with assets having a fair value greater than liabilities and with
capital sufficient to carry on the businesses in which it engages. Each of Counterparty and
ESG: (i) has not engaged in and will not engage in any business or transaction after which
the property remaining with it will be unreasonably small in relation to its business, (ii)
has not incurred and does not intend to incur debts beyond its ability to pay as they mature,
and (iii) as a result of entering into and performing its obligations under the Transaction,
(a) it has not violated and will not violate any relevant state law provision applicable
to the acquisition or redemption by an issuer of its own securities and (b) it would not
be nor would it be rendered “insolvent” (as such term is defined under Section
101(32) of the Bankruptcy Code or under any other applicable local insolvency regime). In
addition, the outstanding amounts owed to service providers in connection with the Business
Combination due in the 364 calendar days following closing of the Business Combination shall
not exceed cash on balance of the combined company at closing. |
| d. | Public
Reports. As of the Trade Date, Counterparty is in material compliance with its reporting
obligations under the Exchange Act, and all reports and other documents filed by Counterparty
with the Securities and Exchange Commission pursuant to the Exchange Act, when considered
as a whole (with the most recent such reports and documents deemed to amend inconsistent
statements contained in any earlier such reports and documents), do not contain any untrue
statement of a material fact or any omission of a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading. |
| e. | No
Distribution. Except with respect to any Shares that may be offered and sold pursuant
to the Registration Statement, Counterparty is not entering into the Transaction to facilitate
a distribution of the Shares (or any security that may be converted into or exercised or
exchanged for Shares, or whose value under its terms may in whole or in significant part
be determined by the value of the Shares) or in connection with any future issuance of securities. |
| f. | SEC
Documents. The Counterparty shall not file with the Securities and Exchange Commission
any Form 8-K (or Form 6-K (if applicable), Registration Statement on Form S-4 (or Form F-4
(if applicable)), including any post-effective amendment thereof, proxy statement, or other
document that includes any disclosure regarding this Confirmation or the Transaction without
consulting with and reasonably considering any comments received from Seller, provided, that
no consultation shall be required with respect to any subsequent disclosures that are substantially
similar to prior disclosures by Counterparty that were reviewed by Seller |
| g. | Waiver.
The Counterparty shall waive any violation of its “bulldog clause,” as set forth
in Article 9.2(c) of the Certificate of Incorporation, and any other restrictions that would
be caused by Seller entering into this Transaction. |
| h. | Disclosure.
Counterparty agrees to comply with applicable SEC guidance in respect of disclosure of the
Transactions. Counterparty shall provide Seller with all public disclosure relating to the
Transaction, including the press release, Form 8-K and any other filing that announces the
Transaction, so that Seller can ensure that such public disclosure adequately discloses the
material terms and conditions of the Transaction and all material non-public information
disclosed to Seller in connection with the Transaction, and Counterparty shall not file or
release any such disclosure without the consent of Seller. Counterparty shall file the Form
8-K announcing the Transaction by 8:30 a.m. Eastern Time on the day following
the date that this Confirmation is signed. The Form 8-K announcing the Transaction will include
disclosure of the estimated Redemption Price, the fact that Seller will be purchasing Shares
outside of the redemption process and the reasons therefor, and the impact that the purchases
by Seller will have on the likelihood that the Business Combination will be approved. If
not included in the Form 8-K announcing the Transaction, Counterparty will file another Form
8-K, prior to the Stockholder Meeting, that discloses the number of Shares purchased by Seller
and the price the Seller paid for those Shares, the nature of the holders that sold Shares
to the Seller, and the number of Shares for which the Counterparty has received redemption
requests. Counterparty will ensure that the proxy statement and registration statement filed
in respect of the Business Combination will include disclosure that the Shares purchased
by the Seller will not be voted in favor of the Business Combination. |
| i. | Listing.
The Counterparty agrees to use its best efforts to maintain the listing of the Shares on
a national securities exchange; provided, that if the Shares cease to be listed on a national
securities exchange or upon the filing of a Form 25 (each a “Delisting Event”),
Seller may accelerate the Valuation Date under this Confirmation by delivering notice to
the Counterparty and shall be entitled to the Legal Fees and Other Expenses, which shall
be due and payable immediately following the Valuation Date. |
| j. | Regulatory
Filings. Counterparty covenants that it will make all regulatory filings that it is required
by law or regulation to make with respect to the Transaction. |
| k. | Regulation
M and Approvals. Each of Counterparty and ESG is not on the Trade Date and agrees and
covenants on behalf of itself and PubCo that it and PubCo will not be on any date Seller
is purchasing shares that may be included in a Pricing Date Notice, engaged or engaging in
a distribution, as such term is used in Regulation M under the Exchange Act, of any securities
of Counterparty, other than a distribution meeting the requirements of the exception set
forth in Rules 101(b)(10) and 102(b)(7) of Regulation M. Counterparty and ESG shall not and
shall cause PubCo to not, until the second scheduled trading day immediately following dates
referenced in the preceding sentence, engage in any such distribution. Each of Counterparty,
ESG and PubCo, also agrees and covenants that the Merger Agreement was executed and all required
approvals and consents of ESG security holders in connection with the Business Combination
have been obtained and any subsequent valuation periods as contemplated under Regulation
M under the Exchange Act, shall have been completed in each case no later than Genesis’s
redemption deadline. |
| l. | No
conflicts. The execution and delivery by Counterparty, ESG and PubCo of, and the performance
by each of Counterparty, ESG and PubCo of its obligations under, the Transaction and the
Confirmation and the consummation of the transactions contemplated by the Confirmation, including
the payments and share issuances hereunder, do not and will not result in any breach or violation
of or constitute a default under, nor constitute any event which, with notice, lapse of time
or both, would result in any breach or violation of or constitute a default under or give
the holder of any indebtedness (or a person acting on such holder’s behalf) the right
to require the repurchase, redemption or repayment of all or a part of such indebtedness
under, or result in the creation or imposition of a lien, charge or encumbrance on any property
or assets of Counterparty, ESG, PubCo or any of their respective subsidiaries pursuant to:
(i) any provision of applicable law, (ii) the organizational documents of any of Counterparty,
ESG, PubCo or any of their respective subsidiaries, (iii) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument binding upon Counterparty, ESG, PubCo or any of
their respective subsidiaries, or (iv) any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Counterparty, ESG, PubCo or any of their
respective subsidiaries, and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by the Counterparty
or ESG of their respective obligations under the Confirmation, except as have been obtained.
In addition, Counterparty and ESG covenant and agree not to enter into any agreement or other
arrangement that would prohibit, restrict or otherwise prevent the Counterparty, ESG or PubCo
from performing its obligations hereunder, including the making of any payment or Share issuance
to the Seller. |
| m. | Tender
Offer Rules. Counterparty, ESG, PubCo and Seller each acknowledge that the Transaction
has been structured, and all activity in connection with the Transaction has been undertaken
to comply with the requirements of all tender offer regulations applicable to the Business
Combination, including Rule 14e-5 under the Securities Exchange Act of 1934. |
| n. | Other
Transactions. Counterparty, ESG and PubCo shall not enter into, negotiate or exchange
terms with any other party for any other Share Forward Transaction or any other similar arrangement
during the term of this Transaction without the prior written consent of Seller. |
3. | Regulatory
Filings. Seller covenants that it will make all regulatory filings that it is required
by law or regulation to make with respect to the Transaction including, without limitation,
as may be required by Section 13 or Section 16 (if applicable) under the Exchange Act and,
assuming the accuracy of Counterparty’s Repurchase Notices (as described under “Repurchase
Notices” below) any sales of the Recycled Shares and the Additional Shares will be
in compliance therewith. |
Transactions
by Seller in the Shares
1. | Seller
hereby waives the redemption rights set forth in the Certificate of Incorporation in connection
with the Business Combination with respect to the Recycled Shares and the Additional Shares
only during the term of this Confirmation. Subject to any restrictions set forth in this
Confirmation, Seller may sell or otherwise transfer, loan or dispose of any of the Shares
or any other shares or securities of the Counterparty in one or more public or private transactions
at any time. Any Recycled Shares and Additional Shares sold by Seller during the term of
the Transaction and included on an OET Notice will cease to be included in the Number of
Shares. |
2. | Unless
specified in an OET Notice, no sale of Shares by Seller shall terminate all or any portion
of this Confirmation, nothing contained herein shall limit any of Seller’s purchases
and sales of Shares. |
Trust
Account Waiver
Seller
hereby waives any and all right, title and interest, or any claim of any kind they have or may have during the term of this Confirmation,
in or to any monies held in the Counterparty’s Trust Account and agrees not to seek recourse against the Trust Account in each
case, as a result of, or arising out of, this Transaction; provided, however, that nothing herein shall (i) serve to limit or prohibit
Seller’s right to pursue a claim against the Counterparty for legal relief against assets held outside the Trust Account, for specific
performance or other equitable relief, (ii) serve to limit or prohibit any claims that the Seller may have in the future against the
Counterparty’s assets or funds that are not held in the Trust Account (including any funds that have been released from the Trust
Account and any assets that have been purchased or acquired with any such funds), (iii) be deemed to limit Seller’s right, title,
interest or claim to the Trust Account by virtue of such Seller’s record or beneficial ownership of securities of the Counterparty
acquired by any means other than pursuant to this Transaction or (iv) serve to limit Seller’s redemption right with respect to
any such securities of the Seller other than during the term of the Confirmation.
No
Arrangements
Seller,
Counterparty, ESG and PubCo each acknowledge and agree that: (i) there are no voting, hedging or settlement arrangements between or among
Seller, Counterparty, ESG and PubCo with respect to any Shares, other than those set forth herein; (ii) Seller may hedge its risk under
the Transaction in any way Seller determines (that does not otherwise violate the terms of this Confirmation), provided that Seller has
no obligation to hedge with the purchase, sale or maintenance of any Shares or otherwise; (iii) Counterparty, ESG and PubCo will not
be entitled to any voting rights in respect of any of the Shares underlying the Transaction; and (iv) Counterpart, ESG and PubCo will
not seek to influence Seller with respect to the voting or disposition of any Shares.
Wall
Street Transparency and Accountability Act
In
connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties
hereby agree that neither the enactment of WSTAA or any regulation under WSTAA, nor any requirement under WSTAA or an amendment made
by WSTAA, nor any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the date
of this Confirmation, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify,
amend or supplement this Confirmation or the ISDA Form, as applicable, arising from a termination event, force majeure, illegality, increased
costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the ISDA Form.
Address
for Notices
Notice
to Seller
Vellar Opportunities Fund Master, Ltd.
3
Columbus Circle
24th
Floor
New
York, NY 10019
Attention:
General Counsel
Email:
With
a copy to:
Seward
& Kissel LLP
One
Battery Park Plaza
New
York, NY 10004
Attention:
Keith Billotti
Email:
Notice
to EGS
Environmental
Solutions Group Holdings Limited
101
Tuas South Avenue 2
Singapore
637226
Attention:
Mr. Quek Leng Chuang, Chairman & CEO
Email:
With
a copy to:
Saul
Ewing LLP
1919
Pennsylvania Avenue N.W.
Washington
D.C. 20006-3434
Attention:
Mark I. Gruhin
Email:
Notice
to Counterparty
Genesis
Unicorn Capital Corp.
281
Witherspoon Street, Suite 120
Princeton,
New Jersey 08540
With
a copy to:
Loeb
& Loeb LLP
345
Park Ave
New
York, NY 10154
Attn:
David Levine
E-mail:
Following
the Closing of the Business Combination
ESGL
Holdings Limited
101
Tuas South Avenue 2
Singapore
637226
Attention:
Mr. Quek Leng Chuang, Chairman & CEO
Email:
With
a copy to:
Loeb
& Loeb LLP
345
Park Ave
New
York, NY 10154
Attn:
David Levine
E-mail:
dlevine@loeb.com
Except
as otherwise expressly provided herein, any notice, consent, waiver and other communication hereunder shall be in writing and shall be
deemed to have been duly given (i) when delivered in person, (ii) upon sending by e-mail, unless there is prompt receipt of a notice
of non-delivery, or (iii) one Local Business Day after sending by a reputable, nationally recognized overnight courier service, in each
case to the applicable Party at the addresses set forth above (or at such other address for a Party as that Party shall specify by notice).
Other
Provisions
| a. | Counterparty
represents and warrants to Seller that Counterparty is not entering into the Transaction
to create actual or apparent trading activity in the Shares (or any security convertible
into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price
of the Shares (or any security convertible into or exchangeable for the Shares) for the purpose
of inducing the purchase or sale of such securities or otherwise in violation of the Exchange
Act, and Counterparty represents and warrants to Seller that Counterparty has not entered
into or altered, and agrees that Counterparty will not enter into or alter, any corresponding
or hedging transaction or position with respect to the Shares. |
| b. | Counterparty
agrees that it will not seek to control or influence Seller’s decision to make any
“purchases or sales” under the Transaction, including, without limitation, Seller’s
decision to enter into any hedging transactions. Counterparty represents and warrants that
it has consulted with its own advisors as to the legal aspects of its adoption and implementation
of this Confirmation and the Transaction under the federal securities laws, including without
limitation, the prohibitions on manipulative and deceptive devices under the Exchange Act. |
| c. | Counterparty
acknowledges and agrees that any amendment, modification, waiver or termination of this Confirmation
must be effected in accordance with the requirements for the amendment or termination of
a written trading plan for trading securities. Without limiting the generality of the foregoing,
Counterparty acknowledges and agrees that any such amendment, modification, waiver or termination
shall be made in good faith and not as part of a plan or scheme to evade compliance with
the federal securities laws, including without limitation the prohibition on manipulative
and deceptive devises under the Exchange Act and no such amendment, modification or waiver
shall be made at any time at which Counterparty or any officer, director, manager or similar
person of Counterparty is aware of any material non-public information regarding Counterparty
or the Shares. |
2. | Repurchase
Notices. Counterparty shall, on any day on which Counterparty effects any repurchase
of Shares (other than in connection with a Counterparty equity compensation program (e.g.,
to fund taxes in connection with vested RSUs)), promptly give Seller a written notice of
such repurchase (a “Repurchase Notice”), if following such repurchase,
the number of outstanding Shares as determined on such day is (i) less than the number of
Shares outstanding that would result in the percentage of total Shares outstanding represented
by the number of Shares underlying the Transaction increasing by 0.10% (in the case of the
first such notice) or (ii) thereafter more than the number of Shares that would need to be
repurchased to result in the percentage of total Shares outstanding represented by the number
of Shares underlying the Transaction increasing by a further 0.10% less than the number of
Shares included in the immediately preceding Repurchase Notice; provided, that Counterparty
agrees that this information does not constitute material non-public information; provided
further if this information shall be material non-public information, it shall publicly disclosed
immediately. Counterparty agrees to indemnify and hold harmless Seller and its affiliates
and their respective officers, directors, employees, affiliates, advisors, agents and controlling
persons (each, an “Indemnified Person”) from and against any and all losses
(including losses relating to Seller’s hedging activities as a consequence of remaining
or becoming a Section 16 “insider” following the closing of the Business Combination,
including without limitation, any forbearance from hedging activities or cessation of hedging
activities and any losses in connection therewith with respect to the Transaction), claims,
damages, judgments, liabilities and reasonable and documented out-of-pocket expenses (including
reasonable and documented attorney’s fees), joint or several, which an Indemnified
Person may become subject to, as a result of Counterparty’s failure to provide Seller
with a Repurchase Notice on the day and in the manner specified in this paragraph, and to
reimburse, within 30 days, upon written request, each of such Indemnified Persons for any
reasonable and documented legal or other expenses incurred in connection with investigating,
preparing for, providing testimony or other evidence in connection with or defending any
of the foregoing; provided, however, for the avoidance of doubt, Counterparty has no indemnification
or other obligations with respect to Seller becoming a Section 16 “insider” prior
to the closing of the Business Combination. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or asserted against
the Indemnified Person as a result of Counterparty’s failure to provide Seller with
a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly
notify Counterparty in writing, and Counterparty, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others Counterparty may designate in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding. Counterparty shall not be liable
for any settlement of any proceeding contemplated by this paragraph that is effected without
its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, Counterparty agrees to indemnify any Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. Counterparty shall not, without
the prior written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding contemplated by this paragraph that is in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such proceeding on terms
reasonably satisfactory to such Indemnified Person. If the indemnification provided for in
this paragraph is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then Counterparty hereunder,
in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims, damages or
liabilities. The remedies provided for in this paragraph are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any Indemnified Person at
law or in equity. The indemnity and contribution agreements contained in this paragraph shall
remain operative and in full force and effect regardless of the termination of the Transaction. |
3. | Transfer
or Assignment. The Seller may freely transfer or assign its rights and duties under this
Confirmation. If at any time following the closing of the Business Combination at which (A)
the Section 16 Percentage exceeds 9.9% (provided that the Counterparty is on such date a
foreign private issuer (as defined by Rule 405 under the Securities Act), or (B) the Share
Amount exceeds the Applicable Share Limit, if any applies (any such condition described in
clause (A) or (B), and “Excess Ownership Position”), Seller is unable
to effect a transfer or assignment of a portion of the Transaction to a third party on pricing
terms reasonably acceptable to Seller, and within a time period reasonably acceptable to
Seller, such that no Excess Ownership Position exists, then Seller may designate any Local
Business Day as an Early Termination Date with respect to a portion of the Transaction (the
“Terminated Portion”), such that following such partial termination no
Excess Ownership Position exists. In the event that Seller so designates an Early Termination
Date with respect to a portion of the Transaction, it shall deliver to Counterparty on the
Early Termination Date a number of Shares equal to the Terminated Portion, and Seller shall
be permitted to retain the Prepayment Amount in respect of such Shares (equal to the number
of Shares in the Terminated Portion times the Initial Price) and shall have no obligation
to make payment to Counterparty in respect of those Shares. The Number of Shares will be
reduced by the number of Shares in any Terminated Portion. The “Section 16 Percentage”
as of any day is the fraction, expressed as a percentage, as determined by Seller, (A) the
numerator of which is the number of Shares that Seller and each person subject to aggregation
of Shares with Seller under Section 13 or Section 16 of the Exchange Act and rules promulgated
thereunder and all persons who may form a “group” (within the meaning of Rule
13d-5(b)(1) of the Exchange Act) with Seller directly or indirectly beneficially own (as
defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder)
(the “Seller Group” ) and (B) the denominator of which is the number of
Shares outstanding. |
The
“Share Amount” as of any day is the number of Shares that Seller and any person whose ownership position would be
aggregated with that of Seller and any group (however designated) of which Seller is a member (Seller or any such person or group, a
“Seller Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty
that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively
owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined
by Seller in its sole discretion.
The
“Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to
reporting (other than on Schedule 13D or 13G) or registration obligations or other requirements (including obtaining prior approval from
any person or entity) of a Seller Person, or could result in an adverse effect on a Seller Person, under any Applicable Restriction,
as determined by Seller in its sole discretion, minus (B) 0.1% of the number of Shares outstanding.
| 4. | Indemnification.
Counterparty agree to indemnify and hold harmless Seller, its affiliates and its assignees
and their respective directors, officers, employees, agents and controlling persons (each
such person being an “Indemnified Party”) from and against any and all
losses (but not including financial losses to an Indemnified Party relating to the economic
terms of the Transaction provided that the Counterparty performs its obligations under this
Confirmation in accordance with its terms), claims, damages and liabilities (or actions in
respect thereof) and reasonable and documented out-of-pocket expenses, joint or several,
incurred by or asserted against such Indemnified Party arising out of, in connection with,
or relating to, investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, whether arising out of any action between any of the
Indemnified Parties and the Counterparty or between any of the Indemnified Parties and any
third party, or otherwise) to which they or any of them may become subject under the Securities
Act, the Exchange Act or any other statute or at common law or otherwise or under the laws
of foreign countries, arising out of or based upon the Transaction, including the execution
or delivery of this Confirmation, the performance by Counterparty of its obligations under
the Transaction, any material breach of any covenant, representation or warranty made by
Counterparty or ESG in this Confirmation or the ISDA Form, regulatory filings and submissions
made by or on behalf of the Counterparty related to the Transaction (other than as relates
to any information provided in writing by or on behalf of Seller or its affiliates), or the
consummation of the transactions contemplated hereby, including the Registration Statement
or any untrue statement or alleged untrue statement of a material fact contained in any registration
statement press release, filings or other document, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading. Counterparty
will not be liable under the foregoing indemnification provision to the extent that any loss,
claim, damage, liability or expense is related to the manner in which Seller sells, or arising
out of any sales by Seller of, any Shares, including the Recycled Shares and the Additional
Shares or found in a nonappealable judgment by a court of competent jurisdiction to have
resulted from Seller’s material breach of any covenant, representation or other obligation
in this Confirmation or the ISDA Form or from Seller’s willful misconduct, bad faith
or gross negligence in performing the services that are subject of the Transaction. If for
any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient
to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum
extent permitted by law, to the amount paid or payable by the Indemnified Party as a result
of such loss, claim, damage or liability. In addition (and in addition to any other Reimbursement
of Legal Fees and other Expenses contemplated by this Confirmation), Counterparty will reimburse
any Indemnified Party for all reasonable, out-of-pocket, expenses (including reasonable counsel
fees and expenses) as they are incurred in connection with the investigation of, preparation
for or defense or settlement of any pending or threatened claim or any action, suit or proceeding
arising therefrom, whether or not such Indemnified Party is a party thereto and whether or
not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty.
Counterparty also agrees that no Indemnified Party shall have any liability to Counterparty
or any person asserting claims on behalf of or in right of Counterparty in connection with
or as a result of any matter referred to in this Confirmation except to the extent that any
losses, claims, damages, liabilities or expenses incurred by Counterparty result from such
Indemnified Party’s breach of any covenant, representation or other obligation in this
Confirmation or the ISDA Form or from the gross negligence, willful misconduct or bad faith
of the Indemnified Party or breach of any U.S. federal or state securities laws or the rules,
regulations or applicable interpretations of the Securities and Exchange Commission. The
provisions of this paragraph shall survive the completion of the Transaction contemplated
by this Confirmation and any assignment and/or delegation of the Transaction made pursuant
to the ISDA Form or this Confirmation shall inure to the benefit of any permitted assignee
of Seller. |
5. | Amendments
to Equity Definitions. |
| a. | Section
12.6(a)(ii) of the Equity Definitions is hereby amended by (i) deleting from the fourth line
thereof the word “or” after the word “official” and inserting a comma
therefor, and (ii) deleting the semi-colon at the end of subsection (B) thereof and inserting
the following words therefor “or (C) the occurrence of any of the events specified
in Section 5(a)(vii)(1) through (9) of the ISDA Form with respect to that Issuer.”;
and |
| b. | Section
12.6(c)(ii) of the Equity Definitions is hereby amended by replacing the words “the
Transaction will be cancelled,” in the first line with the words “Seller will
have the right, which it must exercise or refrain from exercising, as applicable, in good
faith acting in a commercially reasonable manner, to cancel the Transaction.” |
6. | Waiver
of Jury Trial. Each party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any suit, action or proceeding relating
to the Transaction. Each party (i) certifies that no representative, agent or attorney of
either party has represented, expressly or otherwise, that such other party would not, in
the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and
(ii) acknowledges that it and the other party have been induced to enter into the Transaction,
as applicable, by, among other things, the mutual waivers and certifications provided herein. |
7. | Attorney
and Other Fees. Subject to clause (4) Indemnification (above), in the event of any legal
action initiated by any party arising under or out of, in connection with or in respect of,
this Confirmation or the Transaction, the prevailing party shall be entitled to reasonable
and documented attorneys’ fees, costs and expenses incurred in such action, as determined
and fixed by the court. |
8. | Tax
Disclosure. Effective from the date of commencement of discussions concerning the Transaction,
Counterparty and each of its employees, representatives, or other agents may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax structure
of the Transaction and all materials of any kind (including opinions or other tax analyses)
that are provided to Counterparty relating to such tax treatment and tax structure. |
9. | Securities
Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to be (a)
a “securities contract” as defined in the Bankruptcy Code, in which case each
payment and delivery made pursuant to the Transaction is a “termination value,”
“payment amount” or “other transfer obligation” within the meaning
of Section 362 of the Bankruptcy Code and a “settlement payment,” within the
meaning of Section 546 of the Bankruptcy Code, and (b) a “swap agreement” as
defined in the Bankruptcy Code, with respect to which each payment and delivery hereunder
or in connection herewith is a “termination value,” “payment amount”
or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy
Code and a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy
Code and a “payment or other transfer of property” within the meaning of Sections
362 and 546 of the Bankruptcy Code, and the parties hereto to be entitled to the protections
afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and
560 of the Bankruptcy Code, (ii) a party’s right to liquidate, terminate and accelerate
the Transaction and to exercise any other remedies upon the occurrence of any Event of Default
under the ISDA Form with respect to the other party to constitute a “contractual right”
as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities
or other property hereunder to otherwise constitute a “margin payment” or “settlement
payment” and a “transfer” as defined in the Bankruptcy Code. |
10. | Process
Agent. For the purposes of Section 13(c) of the ISDA Form: |
Seller
appoints as its Process Agent: None
Counterparty
appoints as its Process Agent: None.
[Signature
page follows]
Please
confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of this Confirmation and returning it
to us at your earliest convenience.
|
Very
truly yours, |
|
|
|
VELLAR
OPPORTUNITIES FUND MASTER, LTD. |
|
|
|
|
By: |
/s/
Solomon Cohen |
|
Name: |
Solomon
Cohen |
|
Title: |
Director |
Agreed
and accepted by: |
|
|
|
|
Genesis
Unicorn Capital Corp. |
|
|
|
|
By:
|
/s/
Samuel Lui |
|
Name: |
Samuel
Lui |
|
Title: |
President
& Chief Financial Officer |
|
Environmental
Solutions Group Holdings Limited |
|
|
|
|
By:
|
/s/
Quek Leng Chuang |
|
Name: |
Quek
Leng Chuang |
|
Title: |
Director |
|
ESGL
Holdings Limited |
|
|
|
|
By:
|
/s/
Samuel Lui |
|
Name: |
Samuel
Lui |
|
Title: |
Authorized
Signatory |
|
Schedule
A
FORM
OF PRICING DATE NOTICE
Date:
[●], 2023
To:
Genesis Unicorn Capital Corp. (“Counterparty”)
Address:
[●]
Phone:
[●]
From:
[●] (“Seller”)
Re:
OTC Equity Prepaid Forward Transaction
1.
This Pricing Date Notice supplements, forms part of, and is subject to the Confirmation Re: OTC Equity Prepaid Forward Transaction dated
as of July [●], 2023 (the “Confirmation”) between Counterparty and Seller, as amended and supplemented from time to
time. All provisions contained in the Confirmation govern this Pricing Date Notice except as expressly modified below.
2.
The purpose of this Pricing Date Notice is to confirm certain terms and conditions of the Transaction entered into between Seller and
Counterparty pursuant to the Confirmation.
Pricing
Date: [●], 2023
Number
of Recycled Shares: [●]
Number
of Additional Shares: [●]
Number
of Shares: [●]
v3.23.2
Cover
|
Jul. 27, 2023 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Jul. 27, 2023
|
Entity File Number |
001-41287
|
Entity Registrant Name |
GENESIS
UNICORN CAPITAL CORP.
|
Entity Central Index Key |
0001853112
|
Entity Tax Identification Number |
85-4283150
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
281
Witherspoon Street
|
Entity Address, Address Line Two |
Suite 120
|
Entity Address, City or Town |
Princeton
|
Entity Address, State or Province |
NJ
|
Entity Address, Postal Zip Code |
08540
|
City Area Code |
(609)
|
Local Phone Number |
466-0792
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Entity Emerging Growth Company |
true
|
Elected Not To Use the Extended Transition Period |
false
|
Units, each consisting of one share of Class A Common Stock, $0.0001 par value, and one redeemable warrant |
|
Title of 12(b) Security |
Units,
each consisting of one share of Class A Common Stock, $0.0001 par value, and one redeemable warrant
|
Trading Symbol |
GENQU
|
Security Exchange Name |
NASDAQ
|
Class A Common Stock, $0.0001 par value |
|
Title of 12(b) Security |
Class
A Common Stock, $0.0001 par value
|
Trading Symbol |
GENQ
|
Security Exchange Name |
NASDAQ
|
Redeemable warrants, each warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share |
|
Title of 12(b) Security |
Redeemable
warrants, each warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share
|
Trading Symbol |
GENQW
|
Security Exchange Name |
NASDAQ
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- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
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- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
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- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
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- DefinitionAddress Line 2 such as Street or Suite number
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- Definition
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- DefinitionCode for the postal or zip code
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- DefinitionName of the state or province.
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- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
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- DefinitionIndicate if registrant meets the emerging growth company criteria.
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- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
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- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
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- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
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- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
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- DefinitionLocal phone number for entity.
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- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
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- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
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- DefinitionTitle of a 12(b) registered security.
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- DefinitionName of the Exchange on which a security is registered.
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- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
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- DefinitionTrading symbol of an instrument as listed on an exchange.
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- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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