SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”), effective as of February 1, 2021, is made and entered into by and
between Xxx Xxxx Opportunity Corp., a Cayman Islands exempted company (the “Company”), Xxxxxxx Associates, L.P., a Delaware limited partnership (“Xxxxxxx Associates”) and Xxxxxxx International, L.P., a Cayman islands limited
partnership (“Xxxxxxx International”, and, together with Xxxxxxx Associates, the “Buyers”).
WHEREAS, the Buyers wish to subscribe for an aggregate of 21,562,500 Class B ordinary shares (the “Shares”), allocated
to each Buyer in accordance with the percentage set forth opposite such Buyer’s name on Schedule I, par value $0.0001 per share, of the Company, and the Company wishes to issue the Shares to the Buyers in the manner set forth on
Schedule I, on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, representations, warranties and the mutual covenants contained in this Agreement, and
for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I DEFINITIONS
The terms defined in this Article I shall have for all purposes of this Agreement the respective meanings set forth below:
“Agreement” shall have the meaning set forth in the preamble to this Agreement.
“Buyers” shall have the meaning set forth in the preamble to this Agreement.
“Class B ordinary shares” shall have the meaning set forth in the recitals to this Agreement.
“Closing” shall have the meaning set forth in Section 2.3 of this Agreement.
“Closing Date” shall have the meaning set forth in Section 2.3 of this Agreement.
“Company” shall have the meaning set forth in the preamble to this Agreement.
“Consent” means any consent, approval, notification, waiver, or other similar action that is necessary or convenient.
“Governmental Body” shall mean any legislature, agency, bureau, branch, department, division, commission, court, tribunal or other
similar recognized organization or body of any federal, state, county, municipal, local or foreign government or other similar recognized organization or body exercising similar powers or authority.
“Law” shall mean any law (statutory, common or otherwise), constitution, ordinance, rule, regulation, executive order or other
similar authority enacted, adopted, promulgated or applied by any Governmental Body.
“Lien” shall mean a mortgage, deed of
trust, pledge, hypothecation, assignment, encumbrance, charge, restriction, lien (statutory or otherwise, including, without limitation, any lien for taxes), security interest, preference, participation interest, priority or security agreement or
preferential arrangement of any kind or nature whatsoever, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing and the
filing of any document under the law of any applicable jurisdiction to evidence any of the foregoing, other than (i) statutory, mechanics’ or other Liens incurred in the Company’s ordinary course of business or (ii) Liens for
taxes incurred but not yet due.
“Order” shall mean an order, ruling, decision, award, judgment, injunction or
other similar determination or finding by, before or under the supervision of any Governmental Body or arbitrator.
shall mean a permit, license, certificate, waiver, notice or similar authorization.
“Purchase Price” shall have the meaning set
forth in Section 2.2 of this Agreement.
“SEC” shall mean the United States Securities and Exchange
“Securities Act” shall mean the United States Securities Act of 1933, as amended, or any successor federal statute,
and the applicable rules and regulations promulgated and in effect from time to time thereunder.
“Shares” shall have the
meaning set forth in the recitals to this Agreement.
PURCHASE OF THE SHARES
Section 2.1 Purchase and Sale of the Shares. Subject to the terms and conditions hereof and in reliance upon the representations
and warranties of the parties contained or incorporated by reference herein, simultaneous with the execution hereof, the Company shall issue to the Buyers, and the Buyers shall subscribe for the Shares, in each case allocated to each Buyer in
accordance with the percentage set forth opposite such Buyer’s name on Schedule I, in consideration of the payment of the Purchase Price noted herein.
Section 2.2 Purchase Price. As payment in full for the Shares being purchased under this Agreement and against issue of such
Shares, prior to the execution hereof, the Buyers shall pay, or cause to be paid, the aggregate amount of $25,000 to, payable by the Buyers in accordance with the percentage set forth opposite such Buyer’s name on Schedule I, and at the
direction of the Company, by wire transfer of immediately available funds to an account designated by the Company or by such other method as may be reasonably acceptable to the Company (the “Purchase Price”).
Section 2.3 Closing. The closing of the purchase and sale of the Shares (the “Closing”) shall be held on the date of
this Agreement (“Closing Date”) at the offices of Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place as may be agreed upon by the parties hereto.
Section 2.4 Closing Deliveries. All actions taken at the Closing shall be deemed to have been taken simultaneously.
Buyer Deliveries. At the Closing the Buyers shall deliver to the Company the Purchase Price.
(b) Company Deliveries. At the Closing, or within a reasonable time after the Closing, the Company shall issue to
the Buyers, allocated to each Buyer in accordance with the percentage set forth opposite such Buyer’s name on Schedule I, the Shares and make the necessary entries in the Register of Members of the Company.
Section 2.5 Further Assurances. The parties hereto shall execute and deliver such additional documents and take such additional
actions as any party reasonably may deem to be practical and necessary in order to consummate the transactions contemplated by this Agreement.
Section 2.6 Legend. Any certificate evidencing the Shares and any certificate
issued in exchange for or upon the transfer of any Shares shall be stamped or otherwise imprinted with a legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION, AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT AND LAWS.”
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SET FORTH IN THE LETTER AGREEMENT BY AND BETWEEN THE COMPANY AND THE SPONSOR. COPIES OF SUCH AGREEMENT MAY BE OBTAINED FROM THE COMPANY AT THE COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT
Section 2.7 Surrender. The Buyers hereby irrevocably surrenders to the Company for cancellation and for nil
consideration the one Class B ordinary share standing in his name in the register of members of the Company.
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Each Buyer represents and warrants that the statements contained in this ARTICLE III are correct and complete as of the date of this
Section 3.1 Investment Representations.
(a) Such Buyer has received, has thoroughly read, is familiar with and understands the contents of this Agreement.
(b) Such Buyer hereby acknowledges that an investment in the Shares involves certain significant risks. Such Buyer acknowledges that there is a
substantial risk that it will lose all or a portion of its investment and that it is financially capable of bearing the risk of such investment for an indefinite period of time. Such Buyer has no need for liquidity in its investment in the Shares
for the foreseeable future and is able to bear the risk of that investment for an indefinite period. Such Buyer understands that there presently is no public market for the Shares and none is anticipated to develop in the foreseeable future. Such
Buyer’s present financial condition is such that such Buyer is under no present or contemplated future need to dispose of any portion of the Shares subscribed for hereby to satisfy any existing or contemplated undertaking, need or indebtedness.
Such Buyer’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth and the investment in the Company will not cause such overall commitment to become excessive.
(c) Such Buyer acknowledges that the Shares have not been and will not be registered under the Securities Act, or any state securities act, and
are being sold on the basis of exemptions from registration under the Securities Act and applicable state securities acts, except those state securities acts that require registration of the Shares thereunder. Reliance on such exemptions, where
applicable, is predicated in part on the accuracy of such Buyer’s representations and warranties set forth herein. Such Buyer acknowledges and hereby agrees that the Shares will not be transferable under any circumstances unless such Buyer
either registers the Shares in accordance with federal and state securities laws or finds and complies with an available exemption under such laws. Accordingly, such Buyer hereby acknowledges that there can be no assurance that it will be able to
liquidate its investment in the Company.
(d) There are substantial risk factors pertaining to an investment in the Company. Such Buyer
acknowledges that it has read the information set forth above regarding certain of such risks and is familiar with the nature and scope of all such risks, including, without limitation, risks arising from the fact that the Company is an entity with
limited operating history and financial resources; and such Buyer is fully able to bear the economic risks of such investment for an indefinite period, and can afford a complete loss thereof.
(e) Such Buyer has been given the opportunity to (i) ask questions of and receive
answers from the Company and its designated representatives concerning the terms and conditions of the offering, the Company and the business and financial condition of the Company and (ii) obtain any additional information that the Company
possesses or can acquire without unreasonable effort or expense that is necessary to assist such Buyer in evaluating the advisability of the purchase of the Shares and an investment in the Company. Such Buyer further represents and warrants that,
prior to signing this Agreement, it has asked such questions, received such answers and obtained such information as it has deemed necessary or advisable to evaluate the merits and risks of the purchase of the Shares and an investment in the
Company. Such Buyer is not relying on any oral representation made by any person as to the Company or its operations, financial condition or prospects.
(f) Such Buyer understands that no federal, state or other governmental authority has made any recommendation, findings or determination
relating to the merits of an investment in the Company.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 4.1 Incorporation and Good Standing. The Company is an exempted company duly incorporated, validly existing, and in good
standing under the laws of the Cayman Islands.
Section 4.2 Power and Authority; Enforceability. This Agreement constitutes
the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Company has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The
Company has taken all actions necessary to authorize the execution and delivery of this Agreement, the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby. This Agreement has been duly authorized,
executed, and delivered by, and is enforceable against, the Company.
Section 4.3 No Violation; Necessary Approvals. Neither
the execution and delivery of this Agreement by the Company, nor the consummation or performance by the Company of any of the transactions contemplated hereby, will: (a) with or without notice or lapse of time, constitute, create or result in a
breach or violation of, default under, loss of benefit or right under or acceleration of performance of any obligation required under any Law, Order, contract or Permit to which the Company is a party or by which it is bound or any of its assets are
subject, or any provision of the Company’s organizational documents as in effect on the Closing Date, (b) result in the imposition of any lien, claim or encumbrance upon any assets owned by the Company; (c) require any Consent under
any contract or organizational document to which the Company is a party or by which it is bound; or (d) require any Permit under any Law or Order other than (i) required filings, if any, with the SEC and (ii) notifications or other
filings with state or federal regulatory agencies after the Closing that are necessary or convenient and do not require approval of the agency as a condition to the validity of the transactions contemplated hereunder; or (e) trigger any rights
of first refusal, preferential purchase or similar rights with respect to any of the Shares.
Section 4.4 Authorization of the
Shares. The Shares have been duly authorized and, when issued in accordance with this Agreement, the Shares will be duly and validly issued, fully paid and non-assessable Class B ordinary shares of
the Company and will be free and clear of all Liens and claims, other than restrictions on transfer imposed by the Securities Act and applicable state securities laws.
Section 5.1 Entire Agreement. This Agreement, together with any certificates, documents, instruments and writings that are
delivered pursuant hereto, constitutes the entire agreement and understanding of the parties hereto in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or
oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.
Successors. All of the terms, agreements, covenants, representations, warranties, and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the parties hereto and their respective successors.
Section 5.3 Assignments. Except as otherwise provided herein, no party hereto may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval of the other party. Any purported assignment in violation of this Section 5.3 shall be void and ineffectual and shall not operate to transfer or
assign any interest or title to the purported assignee.
Section 5.4 Waiver of Jury Trial. THE PARTIES HERETO EACH HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS. THE SCOPE OF THIS WAIVER IS INTENDED TO
BE ALL ENCOMPASSING OF ANY AND ALL ACTIONS THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTIONS, INCLUDING, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE
PARTIES HERETO EACH ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP AND THAT THEY WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS
THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING HERETO. IN THE EVENT OF AN ACTION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY A COURT.
Section 5.5 Counterparts. This Agreement may be executed in
two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.
Section 5.6 Headings. The article and section headings contained in this Agreement are inserted for convenience only and will not
affect in any way the meaning or interpretation of this Agreement.
Section 5.7 Governing Law. This Agreement, the entire
relationship of the parties hereto, and any litigation between the parties (whether grounded in contract, tort, statute, law or equity) shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of
Delaware, without giving effect to its choice of laws principles.
Section 5.8 Amendments. This Agreement may not be amended,
modified or waived as to any particular provision, except by a written instrument executed by the parties hereto.
Section 5.9 Severability. The provisions of this Agreement will be deemed
severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party hereto or to any circumstance,
is adjudged by a Governmental Body, arbitrator, or mediator not to be enforceable in accordance with its terms, the parties hereto agree that the Governmental Body, arbitrator, or mediator making such determination will have the power to modify the
provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced.
Section 5.10 Expenses. Except as otherwise expressly provided in this Agreement, each party hereto will bear its own costs and
expenses incurred in connection with the preparation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby, including all fees and expenses of agents, representatives, financial advisors, legal
counsel and accountants.
Section 5.11 Construction. The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any
party hereto because of the authorship of any provision of this Agreement. Any reference to any federal, state, local, or foreign Law will be deemed also to refer to Law as amended and all rules and regulations promulgated thereunder, unless the
context requires otherwise. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter
genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,”
“herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The
parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that
there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party
hereto is in breach of the first representation, warranty, or covenant.
Section 5.12 Waiver. No waiver by any party hereto of
any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way
any rights arising because of any prior or subsequent occurrence.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as
of the date first set forth above.
|XXX XXXX OPPORTUNITY CORP.|
/s/ Xxxxxx Xxxxxxxxx
|XXXXXXX INTERNATIONAL, L.P.|
|By: Hambledon, Inc., its General Partner|
|By: Xxxxxxx Investment Management L.P., as|
/s/ Xxxxxx Xxxxxxxxx
|XXXXXXX ASSOCIATES, L.P.|
|By: Xxxxxxx Investment Management L.P., as|
/s/ Xxxxxx Xxxxxxxxx
International, L.P. – 70%
Xxxxxxx Associates, L.P. – 30%