Full Press Release Details
COMBINATION AGREEMENT
ACQUISITION CORP. 1 LIMITED,
EUV INVESTMENT CORPORATION LIMITED,
AS OF AUGUST 29, 2024
| ARTICLE I. CERTAIN DEFINITIONS | 3 | |
| 1.1 | Definitions | 3 |
| ARTICLE II. MERGER | 17 | |
| 2.1 | Transactions | 17 |
| 2.2 | Closing | 19 |
| 2.3 | Withholding | 19 |
| 2.4 | CCTS Warrants | 19 |
| 2.5 | Allocation Schedule | 19 |
| 2.6 | Exchange of Shares | 20 |
| 2.7 | Treatment of Company Awards | 21 |
| ARTICLE III. REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES | 22 | |
| 3.1 | Organization and Qualification | 22 |
| 3.2 | Capitalization of the Group Companies | 22 |
| 3.3 | Authority | 23 |
| 3.4 | Financial Statements; Undisclosed Liabilities | 24 |
| 3.5 | Consents and Requisite Governmental Approvals; No Violations. | 25 |
| 3.6 | Permits | 25 |
| 3.7 | Material Contracts | 25 |
| 3.8 | Absence of Changes | 27 |
| 3.9 | Business Activities | 27 |
| 3.10 | Litigation | 27 |
| 3.11 | Compliance with Applicable Law | 28 |
| 3.12 | Employee Plan. | 28 |
| 3.13 | Environmental Matters | 29 |
| 3.14 | Intellectual Property | 29 |
| 3.15 | Labor Matters | 31 |
| 3.16 | Insurance | 34 |
| 3.17 | Tax Matters | 34 |
| 3.18 | Brokers | 35 |
| 3.19 | Real and Personal Property | 35 |
| 3.20 | Transactions with Affiliates | 36 |
| 3.21 | Data Privacy and Security | 37 |
| 3.22 | Compliance with International Trade & Anti-Corruption Laws | 38 |
| 3.23 | Information Supplied | 38 |
| 3.24 | Investigation; No Other Representations | 39 |
| 3.25 | Regulatory Compliance | 39 |
| 3.26 | Investment Company Act | 39 |
| 3.27 | Top Suppliers and Customers | 39 |
| 3.28 | EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES | 40 |
| ARTICLE IV. REPRESENTATIONS AND WARRANTIES RELATING TO CCTS | 40 | |
| 4.1 | Organization and Qualification | 40 |
| 4.2 | Authority | 41 |
| 4.3 | Consents and Requisite Governmental Approvals; No Violations | 41 |
| 4.4 | Brokers | 41 |
| 4.5 | Information Supplied | 42 |
| 4.6 | Capitalization of CCTS. | 42 |
| 4.7 | SEC Filings | 43 |
| 4.8 | Trust Account | 43 |
| 4.9 | Transactions with Affiliates | 43 |
| 4.10 | Litigation | 44 |
| 4.11 | Compliance with Applicable Law | 44 |
| 4.12 | Business Activities | 44 |
| 4.13 | Internal Controls; Listing; Financial Statements. | 44 |
| 4.14 | No Undisclosed Liabilities | 45 |
| 4.15 | Tax Matters. | 46 |
| 4.16 | Investigation; No Other Representations. | 47 |
| 4.17 | Compliance with International Trade & Anti-Corruption Laws. | 47 |
| 4.18 | EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES | 47 |
| ARTICLE V. [RESERVED.] | 48 | |
| ARTICLE VI. COVENANTS | 48 | |
| 6.1 | Conduct of Business of the Company | 48 |
| 6.2 | Efforts to Consummate | 51 |
| 6.3 | Confidentiality and Access to Information | 53 |
| 6.4 | Public Announcements. | 54 |
| 6.5 | Preparation of Registration Statement/Proxy Statement | 55 |
| 6.6 | CCTS Shareholder Approval | 56 |
| 6.7 | Required Company and Holdco Shareholder Approval | 56 |
| 6.8 | Merger Sub Shareholder Approval | 56 |
| 6.9 | Conduct of Business of CCTS | 57 |
| 6.10 | Nasdaq Listing | 58 |
| 6.11 | Trust Account | 59 |
| 6.12 | CCTS Indemnification; Directors' and Officers' Insurance | 59 |
| 6.13 | Company Indemnification; Directors' and Officers' Insurance | 60 |
| 6.14 | Post-Closing Directors and Officers | 61 |
| 6.15 | PCAOB Financials | 62 |
| 6.16 | Conduct of Business of Holdco | 63 |
| 6.17 | Holdco Equity Incentive Plan | 63 |
| 6.18 | EU Securities Regulation | 63 |
| 6.19 | Intended Tax Treatment | 63 |
| 6.20 | Assignment of Material Contracts | 64 |
| ARTICLE VII. CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS | 64 | |
| 7.1 | Conditions to the Obligations of the Parties | 64 |
| 7.2 | Other Conditions to the Obligations of CCTS | 65 |
| 7.3 | Other Conditions to the Obligations of the Company | 66 |
| 7.4 | Frustration of Closing Conditions | 66 |
| ARTICLE VIII. TERMINATION | 67 | |
| 8.1 | Termination | 67 |
| 8.2 | Effect of Termination | 68 |
| ARTICLE IX. MISCELLANOUS | 68 | |
| 9.1 | Non-Survival | 68 |
| 9.2 | Entire Agreement; Assignment | 68 |
| 9.3 | Amendment | 68 |
| 9.4 | Notices | 68 |
| 9.5 | Governing Law; Submission to Jurisdiction | 69 |
| 9.6 | Fees and Expenses | 69 |
| 9.7 | Construction; Interpretation | 70 |
| 9.8 | Exhibits and Schedules | 70 |
| 9.9 | Parties in Interest | 71 |
| 9.10 | Severability | 71 |
| 9.11 | Counterparts; Electronic Signatures | 71 |
| 9.12 | Knowledge of Company; Knowledge of CCTS | 71 |
| 9.13 | No Recourse | 71 |
| 9.14 | Extension; Waiver | 72 |
| 9.15 | Waiver of Jury Trial | 72 |
| 9.16 | Specific Performance | 72 |
| 9.17 | Trust Account Waiver | 72 |
BUSINESS COMBINATION AGREEMENT (this "Agreement"), dated as of August 29, 2024, is made by and among Cactus Acquisition
Corp. 1 Limited, a Cayman Islands exempted company ("CCTS"), VivoPower International plc, a public limited company
organized under the laws of England and Wales ("Parent"), Tembo Group B.V., a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands ("Holdco"),
Tembo EUV Investment Corporation Limited, a Cayman Islands exempted company ("Merger Sub") and Tembo e-LV B.V., a
private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the
Netherlands (the "Company"). CCTS, Parent, the Company, Holdco and Merger Sub shall be referred to herein from time
to time individually as a "Party," and collectively as the "Parties". Capitalized terms used but
not otherwise defined herein have the meanings set forth in Section 1.1 or elsewhere in this Agreement.
CCTS is a blank check company that was originally incorporated as a Cayman Islands exempted company on April 19, 2021, and incorporated
for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination
with one or more businesses;
the Company is, as of the date of this Agreement, a wholly-owned subsidiary of Parent;
Holdco is, as of the date of this Agreement, a wholly-owned subsidiary of the Company and was formed for purposes of the Transactions;
Merger Sub is, as of the date of this Agreement, a wholly-owned subsidiary of Holdco and was formed for purposes of the Transactions;
on the Closing Date (as defined herein), prior to the consummation of the Merger (as defined herein), each shareholder of the Company
(each, a "Company Shareholder") shall contribute and transfer each Company Share held by it to Holdco and Holdco shall
accept such contribution and in exchange issue to such holder such number of Holdco Shares that is equal to the Applicable Exchange Consideration
Per Share with respect to such Company Share (the foregoing transactions together, the "Company Share Exchange");
following the Company Share Exchange, the legal form of Holdco shall be converted from a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid) to a public limited liability company (naamloze vennootschap) on the terms and
subject to the conditions set forth in this Agreement (the "Holdco Reorganization");
following the Holdco Reorganization, upon the terms and subject to the conditions of this Agreement and in accordance with the Companies
Act (as Revised) (the "Cayman Companies Act"), at the Closing, Merger Sub will merge with and into CCTS, with CCTS
surviving such merger as a wholly-owned subsidiary of Holdco (the "Merger");
at the Closing, by virtue of the Merger, and without any further action on the part of any Party or any other Person: (a) the Relevant
CCTS Shares shall be automatically cancelled and extinguished in exchange for the Merger Consideration, each issued and outstanding CCTS
Warrant shall automatically cease to represent a right to acquire CCTS Class A Shares and shall represent a right to acquire Holdco Shares,
and the Merger Consideration will be settled as follows: (i) each holder of Relevant CCTS Shares will be entitled to the Merger Claims,
(ii) the Merger Claims will be contributed and transferred to Holdco in exchange for the issuance of Holdco Shares (in each case, upon
the terms and subject to the conditions set forth in this Agreement); and (iii) the Surviving Company will issue and allot to Holdco
corresponding Equity Securities in the Surviving Company;
in connection with the Transactions, the Parties desire for Holdco to register the Holdco Shares, and the issuance thereof, with the
SEC to become a publicly traded company;
pursuant to the Governing Documents of CCTS, CCTS is required to provide an opportunity for its shareholders to have their outstanding
CCTS Class A Shares redeemed pursuant to the CCTS Shareholder Redemption on the terms and subject to the conditions set forth therein
in connection with obtaining the Required CCTS Shareholder Approval;
concurrently with the execution of this Agreement, the Persons listed on Schedule A hereto (the "Company Supporting Persons")
have entered into a support agreement substantially in the form attached hereto as Exhibit A (the "Company Shareholder and Investor
Support Agreement"), with the Company, Holdco, Merger Sub and CCTS, pursuant to which, among other things, each Company Supporting
Person (a) is required to grant to the Company (or a designee of the Company) an irrevocable power of attorney, substantially in the
form attached to the Company Shareholder and Investor Support Agreement, permitting and directing the Company (or a designee of the Company),
acting on behalf of each such Company Supporting Person, and the proxyholders under such power of attorney to execute (i) the Dutch Deed
of Issue Company Share Exchange (to the extent such Company Supporting Person is or will become a Company Shareholder prior to the Company
Share Exchange) and (ii) any other Ancillary Documents to which such Company Supporting Person is or will be a party and (b) irrevocably
undertook vis- -vis the Company, Holdco, Merger Sub, CCTS and each other Company Supporting Person to perform all necessary or
desirable actions in connection with the Transactions to consummate the Company Share Exchange and (c) agreed to certain covenants to
support the Transactions, including certain restrictions on the sale, disposition or transfer of the Company Shares held or to be held
by such Company Shareholder;
concurrently with the execution of this Agreement, certain CCTS Shareholders (including Cactus Healthcare Management LP, a Delaware limited
partnership ("CHM"), which is the record holder of 632,500 CCTS Class A Shares, and ARWM Inc Pte Limited ("ARWM")),
which is the record holder of 2,359,999 CCTS Class A Shares and one CCTS Class B Share, CCTS, the Company and Holdco have entered into
a support agreement substantially in the form set forth as Exhibit B hereto (the "Investor Support Agreement"), pursuant
to which, among other things, such CCTS Shareholders and such principals have agreed (a) to vote in favor of this Agreement and the Transactions
(including the Merger) and (b) not to redeem their respective shares in CCTS in connection with the Transactions (including the Merger)
contemplated hereby and in the Ancillary Documents;
immediately prior to the Closing, in accordance with Section 7.2(g)(ii) and Section 7.3(c)(ii), Holdco, CHM, ARWM and certain
other (direct or indirect) Company Shareholders (collectively, the "IRA Shareholders") shall enter into a registration
rights agreement, in a form to be agreed on or before the Closing Date (the "Investor Rights Agreement"), pursuant
to which, among other things, CHM, ARWM and each IRA Shareholder will be granted certain registration rights with respect to their respective
Holdco Shares, in each case, on the terms and subject to the conditions therein;
prior to the Closing, certain holders of Company Shares (the "Lock-Up Holders") will enter into lock-up agreements
substantially in the form set forth as Exhibit C hereto (each, a "Lock-Up Agreement"), each of which shall be effective
as of the Closing, pursuant to which, among other things, the Lock-Up Holders party thereto will agree not to effect any sale or distribution
of certain shares of the Company held by them during the applicable lock-up period(s) described therein, and on the terms and subject
to the conditions therein;
effective upon the Closing, the appointment of members to the board of directors of Holdco (the "Holdco Board") as
set forth in Section 6.14 will take effect;
the board of directors of CCTS (the "CCTS Board"), after receiving financial and legal advice, including the receipt
of the Fairness Opinion, has unanimously (a) determined that the Merger and the other Transactions are fair to, and in the best interests
of, CCTS and its shareholders, (b) adopted resolutions approving this Agreement and declaring its advisability and approving the Merger
and the other Transactions and (c) recommended the authorization of the Plan of Merger and the approval of the Transactions by the shareholders
of CCTS in order to procure the Required CCTS Shareholder Approval;
the Holdco Board has (a) determined that this Agreement, the Merger and the other Transactions are in the best interests of Holdco and
its business and (b) adopted resolutions approving this Agreement, the Merger and the other Transactions;
for U.S. federal (and applicable state and local) income Tax purposes, it is the intent of the Parties that the Company Share Exchange
and the Merger, when taken together, qualify as an exchange described in Section 351 of the Code (the "Intended Tax Treatment");
the Company, in its capacity as the sole shareholder of Holdco, has adopted resolutions approving this Agreement, the Merger and the
other Transactions; and
the board of directors of the Company (the "Company Board") has unanimously adopted resolutions (i) determining that
this Agreement and the Transactions are conducive to the Company's objects and serve the best interests of the Company, its business
and the Company's stakeholders and (ii) approving the execution, delivery and performance by the Company of this Agreement and
the consummation of the Transactions.
THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
Definitions. As used in this Agreement, the following terms have the respective meanings set forth below.
CCTS SEC Reports" has the meaning set forth in Section 4.7.
means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise, and the terms "controlled" and "controlling" have meanings correlative thereto.
Cash Proceeds" means the amount of cash available in the Trust Account after giving effect to the CCTS Shareholder Redemption.