Common use of Pubco issued capital Clause in Contracts

Pubco issued capital. The parties acknowledge and agree that the calculations and assumptions set out in the spreadsheet (acknowledged via email by representatives of BTH and SPAC for the purposes of this clause on or prior to the date of this deed) represent, as at the date of this deed, their respective understanding regarding the indicative Pubco issued capital as at the Implementation Date. For the avoidance of doubt, the parties acknowledge and agree that a party will not have breached this clause 4.13, and no other party will have any rights under the SID or any of the Transaction Documents for any breach of this clause 4.13 by a party, in each case to the extent such alleged breach relates to any of the assumptions in the spreadsheet (acknowledged via email by representatives of BTH and SPAC for the purposes of this clause on or prior to the date of this deed) being incorrect or not eventuating on or prior to the Implementation Date. 5.1 BTH’s obligations (a) (BTH Information) prepare the BTH Information in compliance with all applicable laws (in particular with the Corporations Act, RG 60 and the Listing Rules); (b) (drafts of BTH Information) make available to SPAC and Pubco drafts of the BTH Information, consult with SPAC and Pubco in relation to the content of those drafts, and consider in good faith, for the purpose of amending those drafts, comments from SPAC and Pubco on those drafts; (c) (approval of SPAC Information and Pubco Information) review the SPAC Information and Pubco Information and seek approval from SPAC and Pubco for the form and context in which the SPAC Information and the Pubco Information, respectively, appears in the Scheme Booklet, which approval SPAC and Pubco must not unreasonably withhold, condition or delay, and BTH must not lodge the Scheme Booklet with ASIC until such approval is obtained from (or unreasonably withheld, conditioned or delayed by) SPAC and Pubco; (d) (liaison with ASIC): (i) as soon as practicable but no later than 14 days before the First Court Date, provide an advanced draft of the Scheme Booklet to ASIC for its review and approval for the purposes of section 411(2) of the Corporations Act; and (ii) liaise with ASIC during the period of its consideration of that draft of the Scheme Booklet and keep the other parties reasonably informed of any matters raised by ASIC in relation to the Scheme Booklet and use reasonable endeavours, in consultation with the other parties, to resolve any such matters; (e) (approval of Scheme Booklet) as soon as reasonably practicable after the conclusion of the review by ASIC of the Scheme Booklet, procure that a meeting of the BTH Board, or of a committee of the BTH Board appointed for the purpose, is held to consider approving the Scheme Booklet for despatch to the BTH Shareholders, subject to orders of the Court under section 411(1) of the Corporations Act; (f) (section 411(17)(b) statements) apply to ASIC for the production of statements in writing pursuant to section 411(17)(b) of the Corporations Act stating that ASIC has no objection to the Scheme and does not intend to appear before the Court on the First Court Date; (g) (first Court hearing) lodge all documents with the Court and take all other reasonable steps to ensure that promptly after, and provided that the approval in clause 5.1(e) has been received, an application is heard by the Court for an order under section 411(1) of the Corporations Act directing BTH to convene the Scheme Meeting; (h) (registration of Scheme Booklet) if the Court directs BTH to convene the Scheme Meeting, on the first Business Day after such Court orders are made or as soon as possible after such orders are made, request ASIC to register the explanatory statement included in the Scheme Booklet in relation to the Scheme in accordance with section 412(6) of the Corporations Act; (i) (updating BTH Information) until the date of the Scheme Meeting, promptly update the BTH Information with any information that arises after the Scheme Booklet has been dispatched that is necessary to ensure that the BTH Information does not contain any material statement that is false or misleading in a material respect (including because of any material omission from that statement); (j) (Independent Expert) promptly appoint the Independent Expert to provide the Independent Expert’s Report, and provide assistance and information reasonably required by the Independent Expert to enable it to prepare the Independent Expert’s Report (including any updates to such report) and any other material to be prepared by them for inclusion in the Scheme Booklet (including any updates thereto). Subject to the Independent Expert’s consent (which BTH will seek), provide a near final report from the Independent Expert to SPAC at least 7 Business Days prior to the provision of the Independent Expert’s Report to ASIC for factual accuracy review only; (k) (preparation of the Registration Statement) use reasonable best endeavours to assist Pubco in the preparation and filing of the Registration Statement, including by furnishing all information (including the financial statements of the BTH Group) concerning BTH as Pubco or SPAC may reasonably request in connection with such actions and the preparation of the Registration Statement. (l) (update Registration Statement) until the date of the SPAC Shareholders Meeting, promptly inform SPAC and Pubco of any information in relation to BTH that BTH is aware of that arises after the Registration Statement has been declared effective that is necessary to ensure that the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading. The parties must consult on the content and presentation of any update or supplement to the Registration Statement, or where appropriate, an announcement to otherwise inform the market of the updated information contemplated by this clause; (m) (financial statements) BTH shall deliver to SPAC and Pubco as promptly as practicable after the execution of the BCA with regard to clauses (i) and (iii) below, the true and complete copies of the (i) audited consolidated statement of financial position as of June 30, 2024 and June 30, 2023, and the related audited statements of comprehensive income, changes in equity and cash flows for the years ended June 30, 2024, and June 30, 2023, of BTH Group, together with all related notes and schedules thereto, accompanied by the reports thereon of BTH’s independent auditors (which reports shall be unqualified) (the Audited Financial Statements); (ii) any financial statements or similar reports of BTH required to be included in the Registration Statement, the SPAC Proxy Statement, the Form 6-K filed in connection with and announcing the Closing or any other filings to be made with the SEC in connection with the transactions contemplated by the BCA or any Ancillary Agreement (as defined in the BCA); and (iii) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Exchange Act (as if BTH Group were subject thereto) with respect to the periods described in clause (i), as necessary for inclusion in the Registration Statement (including pro forma financial information). Additionally, BTH shall use reasonable endeavours to provide as soon as reasonably practicable all other audited and unaudited financial statements of BTH Group, and any company or business units acquired by BTH Group, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Registration Statement, the SPAC Proxy Statement, the Form 6-K filed in connection with and announcing the Closing (including pro forma financial information). The Audited Financial Statements shall be audited by a PCAOB qualified auditor, in accordance with PCAOB auditing standards; (n) (court documents) prepare, and reasonably consult with SPAC and Pubco in relation to the content of, the documents required for the purpose of each of the Court hearings held for the purpose of subsection 411(1) and paragraph 411(4)(b) of the Corporations Act in relation to the Scheme (including originating process, affidavits, submissions and draft minutes of Court orders) and: (i) provide drafts of those documents to SPAC and Pubco in a timely manner; (ii) provide SPAC and Pubco with a reasonable opportunity to review and comment on those documents before they are lodged or filed with the Court; and (iii) consider in good faith, for the purpose of amending drafts of those documents, comments from SPAC and Pubco on those documents; (o) (representation) procure that it is represented by counsel at the Court hearings convened for the purposes of subsection 411(1) and paragraph 411(4)(b) of the Corporations Act and allow, and not oppose, any application by SPAC and/or Pubco for leave of the Court to be represented by counsel at such a Court hearing; (p) (consultation with SPAC and Pubco in relation to Scheme Booklet) reasonably consult with SPAC and Pubco as to the content and presentation of the Scheme Booklet including: (i) providing to SPAC and Pubco drafts of the Scheme Booklet for the purpose of enabling SPAC and Pubco to review and comment on those draft documents; (ii) considering in good faith all timely comments made by SPAC and Pubco when producing a revised draft of the Scheme Booklet; and (iii) obtaining written consent from SPAC and Pubco for the form and content in which the SPAC Information and Pubco Information appears in the Scheme Booklet (such consent must not be unreasonably withheld, conditioned or delayed by SPAC and Pubco); (q) (update Scheme Booklet) until the date of the Scheme Meeting, promptly update the Scheme Booklet with, or where appropriate otherwise inform the market by way of announcement of, any information that arises after the Scheme Booklet has been dispatched that is necessary to ensure that the Scheme Booklet: (i) contains all information that is required to be disclosed to BTH Shareholders under any applicable law or RG 60; and (ii) is not misleading or deceptive in any material respect and does not contain any material statement that is false or misleading in a material respect. (r) (convening Scheme Meeting) take all reasonable steps necessary to comply with the orders of the Court including, as required, despatching the Scheme Booklet to the BTH Shareholders and convening and holding the Scheme Meeting, provided that if this deed is terminated under clause 12, BTH will take all steps reasonably required to ensure the Scheme Meeting is not held; (s) (Court approval application) if the resolution submitted to the Scheme Meeting is passed by the majorities required under section 411(4)(a)(ii) of the Corporations Act (or, where clause 3.6 applies, the majority required under section 411(4)(a)(ii)(B) of the Corporations Act), subject to all other Conditions being satisfied or waived in accordance with this deed (other than the Condition in clause 3.1(d)), apply (and, to the extent necessary, re-apply) to the Court for orders approving the Scheme and, without limiting clause 5.1(s), lodge all relevant documents with the Court and take all other reasonable steps necessary to ensure that such application is heard by the Court at the hearing on the Second Court Date;