Form 425 Act II Global Acquisitio Filed by: Act II Global Acquisition Corp.

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

CURRENT REPORT

 

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported):  February 12, 2020

 

ACT II GLOBAL ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

 

Cayman Islands		001-38880		38-4101973
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

c/o DLA Piper LLP (US)

1251 Avenue of the Americas

New York, New York 10020

Attn: Christopher Giordano

(Address of principal executive offices, including zip code)

 

Registrant’s telephone number, including area code: (212) 335-4500

 

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:

 

x	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

 

Emerging growth company x

 

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. ¨

 

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 Class A Ordinary Share and one-half of one Redeemable Warrant		ACTTU		The NASDAQ Stock Market LLC
Class A Ordinary Shares, par value $0.0001 per share		ACTT		The NASDAQ Stock Market LLC
Redeemable Warrants, each exercisable for one Class A Ordinary Share for $11.50 per share		ACTTW		The NASDAQ Stock Market LLC

 

 

Item 1.01

Entry Into A Material Definitive Agreement.

 

Amendment to the Purchase Agreement

 

As previously disclosed, on December 19, 2019, Act II Global Acquisition Corp. (“Act II”) entered into a purchase agreement (the “Purchase Agreement”) with Flavors Holdings Inc. (“Flavors Holdings”), MW Holdings I LLC (“MW Holdings I”), MW Holdings III LLC (“MW Holdings III”) and Mafco Foreign Holdings (together with Flavors Holdings, MW Holdings I and MW Holdings III, the “Sellers”), in connection with the proposed purchase of all of the outstanding equity interests of Merisant Company (“Merisant”), Merisant Luxembourg (“Merisant Luxembourg”), Mafco Worldwide LLC (“Mafco Worldwide”), Mafco Shanghai LLC (“Mafco Shanghai”), EVD Holdings LLC (“EVD Holdings”), and Mafco Deutschland (together with Merisant, Merisant Luxembourg, Mafco Worldwide, Mafco Shanghai, and EVD Holdings, the “Transferred Entities”). Subject to the terms and conditions of the Purchase Agreement, at the closing of the transactions (the “Transactions”) contemplated thereunder (the “Closing”), the Sellers shall sell, convey, assign, transfer and deliver to Act II, and Act II shall purchase, the issued and outstanding capital stock of the Transferred Entities certain assets and assume certain liabilities included in the Transferred Assets and Liabilities (as defined in the Purchase Agreement) in each instance, free and clear of all liens, in exchange, subject to the limitations set forth below, for the Purchase Price as defined in the Purchase Agreement (as defined below).

 

On February 12, 2020, the Sellers and Act II entered into Amendment No. 1 to Purchase Agreement (the “Purchase Agreement Amendment”), pursuant to which the parties amended certain provisions of the Purchase Agreement, in order to, among other things:

 

·

reduce the Purchase Price by eliminating the Earnout Shares and Escrowed Seller Shares (in each case as defined in the Purchase Agreement);

 

·

provide that the Purchaser Ordinary Shares Consideration (as defined in the Purchase Agreement) will be equal to the number of Class A ordinary shares of Act II equal to the quotient of (i) the sum of (A) $60,000,000 and (B) the amount, if any, by which the Base Cash Consideration is reduced by Act II in accordance with the terms of the Purchase Agreement Amendment, divided by (ii) the lowest per share price at which Class A ordinary shares are sold by Act II to any person from and after the date of the Purchase Agreement but prior to, at or in connection with the Closing;

 

·

add covenants relating to the new proposal by Act II to (i) reduce, prior to Closing, the number of Class A ordinary shares of Act II (“Ordinary Shares”) into which all Public Warrants (as defined in the Purchase Agreement Amendment) outstanding as of the date of the Purchase Agreement Amendment are exercisable by one half; (ii) provide for cash payments to the holders of Public Warrants (“Warrant Holders”); and (iii) make any conforming amendments in connection with the Domestication (as defined in the Purchase Agreement) (collectively, the “Warrant Amendment”);

 

·

provide Act II with the option, immediately prior to Closing, subject to certain conditions set forth in the Purchase Agreement Amendment and after (a) giving effect to the Private Placement (defined below), any additional equity financing, and the Debt Financing (as defined in the Purchase Agreement) and (b) taking into account all amounts held by Act II in trust, to reduce the Base Cash Consideration by the amount of funds necessary (up to $55,000,000) for Act II to pay (i) the Cash Consideration, (ii) any amounts paid in connection with the Warrant Amendment, and (iii) the Transaction Costs in exchange for a dollar-for-dollar increase in the Purchaser Ordinary Shares Consideration;

 

·

reduce the number of Class A ordinary shares of Act II to be deposited into escrow by Act II Global LLC (“Act II Sponsor”) at the Closing from 5,000,000 to 2,000,000;

 

·

exclude proceeds contemplated by the completion of the Private Placement and any additional equity financing procured by Act II from the Closing condition under the Purchase Agreement related to minimum cash;

 

·

provide that Act II is only required to use reasonable best efforts to obtain Term Loan B Financing (as defined in the Purchase Agreement) in the event that there is no longer a reasonable expectation that the Private Placement will be obtained in accordance with the subscription agreements entered into with the Private Investors (as defined below);

 

·

eliminate certain escrow, earnout and other provisions of the Purchase Agreement relating to contingent obligations of Act II that have also been eliminated; and

 

 

·

add representations and covenants of Act II related to the Private Placement (as defined below).

 

A copy of the Purchase Agreement Amendment is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference, and the foregoing description of the Purchase Agreement Amendment is qualified in its entirety by reference thereto.

 

Amendment to Sponsor Support Agreement

 

As previously disclosed, concurrently with the execution of the Purchase Agreement, Act II Sponsor, Act II and the Sellers entered into a Sponsor Support Agreement (the “Sponsor Support Agreement”), pursuant to which Act II Sponsor agreed to  certain covenants and agreements related to the Transactions, particularly with respect to taking supportive actions to consummate the Transactions and to designate two of the Sellers’ directors to the board of directors of Act II, to be effective at the Closing. In addition, Act II Sponsor irrevocably waived its anti-dilution protections under the Act II’s Amended and Restated Memorandum and Articles of Association in connection with any new issuances of Ordinary Shares.

 

Concurrently with the execution of the Purchase Agreement Amendment, Act II Sponsor, Act II, and the Sellers entered into Amendment No. 1 to Sponsor Support Agreement (the “Sponsor Support Amendment”), pursuant to which the Sponsor Support Agreement was amended to reflect the amendments, to the extent applicable, to the Purchase Agreement described above. In addition, pursuant to the Sponsor Support Amendment:

 

·

Act II Sponsor will forfeit (i) 3,000,000 shares of Act II’s Class B ordinary shares (the “Founder Shares”); and (ii) 6,750,000 warrants to purchase Ordinary Shares at a price of $11.50 per share (the “Founder Warrants”) immediately following the Closing; and

 

·

Act II Sponsor has waived any rights that it might otherwise have to receive any cash payment with respect to its Founder Warrants.

 

A copy of the Sponsor Support Amendment is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference. The foregoing description of the Sponsor Support Amendment is qualified in its entirety by reference thereto.

 

Commitment Letter

 

As previously disclosed, on December 19, 2019, in connection with entering into the Purchase Agreement, Act II entered into a commitment letter (the “Commitment Letter”) with TD Securities (USA) LLC (“TDSL”), as left lead arranger and book runner, The Toronto-Dominion Bank, New York Branch (“TDNY”), as a lender, and Toronto Dominion (Texas) LLC (“TDTX”) as administrative agent. Pursuant to the Commitment Letter, TDSL agreed to arrange and TDNY committed to provide Act II with (i) a senior secured term loan facility in the aggregate amount of up to $185,000,000 (the “Term Facility”) and (ii) a senior secured revolving credit facility of up to $50,000,000 (the “Revolving Facility,” and together with the Term Facility, the “Credit Facilities”). The proceeds of the Term Facility on the Closing Date (as defined in the Commitment Letter) may be used (x) to fund the Transactions, and (y) to pay the fees, costs and expenses incurred in connection with the Transactions. Up to $5,000,000 (which may be increased) of the proceeds of the Revolving Facility may be used on the Closing Date for general corporate purposes and to backstop or replace letters of credit. The proceeds of the Revolving Facility after the Closing Date may be used for working capital and general corporate purposes, including for capital expenditures. The availability of the borrowings under the Credit Facilities is subject to the satisfaction of certain customary conditions, including the consummation of the Transactions.

 

A copy of the Commitment Letter is filed with this Current Report on Form 8-K as Exhibit 10.2 and is incorporated herein by reference. The foregoing description of the Commitment Letter is qualified in its entirety by reference thereto.

 

Item 3.02

Unregistered Sales of Equity Securities.

 

Private Placement Transactions

 

In connection with the foregoing and concurrently with the execution of the Purchase Agreement Amendment and the Sponsor Support Amendment, Act II entered into subscription agreements with certain investors (collectively, the “Private Placement Investors”) pursuant to which, among other things, such investors agreed to subscribe for and purchase, and Act II agreed to issue and sell to such investors, 7,500,000 of Act II’s Class A ordinary shares, par value $0.0001 (“Ordinary Shares”), and warrants representing the right to purchase 2,631,750 Ordinary Shares (the “Warrants”) for gross proceeds of approximately $75,000,000 (the “Private Placement”). Act II granted certain customary registration rights to the Private Placement Investors.

 

 

The Ordinary Shares and Warrants to be offered and sold in connection with the Private Placements have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon the exemption provided in Section 4(a)(2) of the Securities Act and/or Regulation D or Regulation S promulgated thereunder without any form of general solicitation or general advertising. The Private Placement is contingent upon, among other things, the closing of the Transactions. The proceeds from the Private Placement will be used to fund a portion of the Aggregate Cash Obligations (as defined under the Purchase Agreement) for the Transactions.

 

A copy of the form of subscription agreement is filed with this Current Report on Form 8-K as Exhibit 10.3 and is incorporated herein by reference. The foregoing description of the subscription agreements is qualified in its entirety by reference thereto.

 

Item 7.01

Regulation FD Disclosure.

 

On February 12, 2020, Act II issued a press release announcing the execution of the Purchase Agreement Amendment and the Sponsor Support Amendment. The press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.

 

Act II prepared a revised investor presentation for use in connection with various meetings and conferences. A copy of the investor presentation is furnished as Exhibit 99.2 and incorporated by reference herein.

 

On February 12, 2020, Act II Sponsor entered into a side letter to the subscription agreement with Baron Small Cap Fund (“Baron”), pursuant to which Act II Sponsor agreed that it will designate, as the sole holder of Act II’s Class B ordinary shares, one individual that has been mutually agreed with Baron to serve as a director on Act II’s board of directors. A copy of the side letter is furnished as Exhibit 99.3 and incorporated by reference herein.

 

The foregoing (including Exhibits 99.1, 99.2 and 99.3) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.

 

Additional Information and Where to Find It

 

In connection with the proposed business combination and warrant amendment, Act II intends to file with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-4 and will mail the definitive proxy statement/prospectus and other relevant documentation to Act II shareholders and Act II warrant holders. This filing does not contain all the information that should be considered concerning the proposed transaction. It is not intended to form the basis of any investment decision or any other decision with respect to the business combination and the warrant amendment. This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of the federal securities laws.

 

Act II shareholders and Act II warrant holders and other interested persons are advised to read, when available, the preliminary proxy statement/prospectus and any amendments thereto, and the definitive proxy statement/prospectus in connection with Act II’s solicitation of proxies for the extraordinary general meeting to be held to approve the proposed transaction, because these materials will contain important information about Merisant Company (“Merisant”), MAFCO Worldwide LLC (“Mafco”) and Act II and the proposed transaction.

 

The definitive proxy statement/prospectus will be mailed to Act II shareholders as of a record date to be established for voting on the business combination, and to the Act II warrant holders as of a record date to be established for voting on the warrant amendment, when it becomes available. Shareholders and warrant holders will also be able to obtain a copy of the preliminary proxy statement/prospectus and definitive proxy statement/prospectus once they are available, without charge, at the SEC’s website at www.sec.gov or by directing a request to Act II at 745 5th Avenue, New York, NY 10151.

 

Participants in the Solicitation

 

Act II, Merisant, Mafco and their respective directors and officers and representatives or affiliates may be deemed to be participants in the solicitation of proxies of Act II shareholders in connection with the business combination and of Act II warrant holders in connection with the warrant amendment. Act II shareholders and Act II warrant holders and other interested persons may obtain, without charge, more detailed information regarding the directors and officers of Act II in the final prospectus of Act II, which was filed with the SEC on April 29, 2019. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to Act II shareholders in connection with the business combination, and to Act II warrant holders in connection with the warrant amendment, will be set forth in the proxy statement/prospectus for the business combination and warrant amendment when available. Additional information regarding the interests of participants in the solicitation of proxies in connection with the business combination and warrant amendment will be included in the proxy statement/prospectus that Act II intends to file with the SEC and other documents furnished or filed with the SEC by Act II.

 

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit No.		Description
2.1		Amendment No. 1 to the Purchase Agreement dated as of February 12, 2020, by and among Act II and the Sellers.
10.1		Amendment No.1 to Sponsor Support Agreement dated as of February 12, 2020, by and among Act II Sponsor, Act II and the Sellers.
10.2		Commitment Letter dated December 19, 2019, by and among TDSL, TDNY, TDTX and Act II.
10.3		Form of Subscription Agreement.
99.1		Press Release, dated February 12, 2020.
99.2		Investor Presentation, dated February 2020.
99.3		Side Letter to Subscription Agreement dated February 12, 2020, by and between Act II Sponsor and Baron.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

	Act II Global Acquisition Corp.
Date: February 13, 2020	By:	/s/ Ira J. Lamel
		Name: Ira J. Lamel Title: Chief Financial Officer

 

 

Exhibit 2.1

 

AMENDMENT NO. 1

TO

PURCHASE AGREEMENT

 

This Amendment No. 1 to the Purchase Agreement dated as of February 12, 2020 (this “Amendment”), is entered into by and among FLAVORS HOLDINGS INC., a Delaware corporation (“Flavors Holdings”), MW HOLDINGS I LLC, a Delaware limited liability company (“MW Holdings I”), MW HOLDINGS III LLC, a Delaware limited liability company (“MW Holdings III,” and together with MW Holdings I, the “MW Holdings Entities”), MAFCO FOREIGN HOLDINGS, INC., a Delaware corporation (“Mafco Foreign Holdings,” and collectively with the MW Holdings Entities and Flavors Holdings, the “Sellers”), and Act II Global Acquisition Corp., a Cayman Islands exempted company (the “Purchaser”). Each of the Sellers and the Purchaser are herein referred to individually as a “Party” and, collectively, as the “Parties.”

 

RECITALS

 

WHEREAS, the Parties have entered into a Purchase Agreement dated as of December 19, 2019 (as heretofore amended, supplemented, or modified, the “Agreement”); and

 

WHEREAS, the Parties desire to amend the Agreement on the terms and subject to the conditions set forth herein;

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.             Definitions. Capitalized terms used and not defined in this Amendment have the respective meanings assigned to them in the Agreement.

 

2.             Amendments to Recitals. The Recitals to the Agreement are hereby amended or modified as follows:

 

(a)             The word “and” is inserted immediately after the semicolon at the end of the sixth (6th) WHEREAS clause.

 

(b)             The semicolon at the end of the seventh (7th) WHEREAS clause is deleted and substituted with a period.

 

(c)             The eighth (8th) WHEREAS clause to the Agreement is deleted in its entirety.

  

 

3.             Amendments to Article I. Article I of the Agreement is hereby amended or modified as follows:

 

(a)           The following new definitions are inserted in the appropriate alphabetical order in Section 1.1 of the Agreement:

 

“Amendment” means that certain Amendment No. 1 to this Agreement dated as of February 12, 2020, by and among the Parties.

 

“Escrow Period” means the period between the date of Closing but on or prior to the fifth (5th) anniversary of Closing.

 

“Public Warrantholders” means the holders of outstanding Public Warrants as of the date of the Amendment.

 

“Purchaser Sponsor” means Act II Sponsor LLC, a Delaware limited liability company.

 

“Sponsor Support Agreement” means that certain Sponsor Support Agreement dated as of December 19, 2019, by and among the Purchaser Sponsor, the Purchaser and the Sellers, as amended by that certain Amendment No. 1 dated as of February 12, 2020.

 

“Subscription Agreements” means, collectively, the subscription agreements Purchaser has entered into with certain third-party investors as of the date of the Amendment (the “PIPE Investors”), pursuant to which the PIPE Investors have committed to make a private investment of $75,000,000 in the aggregate in the form of Class A Ordinary Shares at a price of $10.00 per share (the “PIPE Investment”).

 

“Units” means the units of the Purchaser’s equity securities, each consisting of one Class A Ordinary Share and one-half of one Public Warrant.

 

“Warrant Amendment” means a proposal voted on by the Public Warrantholders in form and substance reasonably acceptable to the Purchaser and Sellers to (i) reduce, prior to Closing, the number of Class A Ordinary Shares into which all Public Warrants outstanding as of the date of the Amendment are exercisable by one half, (ii) provide for cash payments to Public Warrantholders and (iii) make any conforming amendments required in connection with the Domestication.

 

(b)           The following definitions are hereby deleted in their entirety:

 

(i)             “Secondary Trigger Event”

 

(ii)            “Tier 1 Threshold Price”

 

(iii)           “Tier 2 Threshold Price”

 

 

(c)            The following definitions in Section 1.1 of the Agreement are amended and restated in their entirety as follows:

 

“Base Cash Consideration” means $450,000,000; provided, however, that, immediately prior to the Closing, the Purchaser may, following good faith and reasonable best efforts to cooperate with Sellers to reduce or eliminate the necessity of such a reduction including by seeking additional funds, reduce such amount by the amount necessary, up to a maximum of $55,000,000, to permit the representation set forth in Section 4.15(d) (as amended and restated by the Amendment) to be correct as of Closing; provided, further, that, any such reduction will result in a dollar-for-dollar increase for the Purchaser Ordinary Shares Consideration.

 

“Escrow Agreement” means an agreement substantially in the form of the agreement attached as Annex A to the Amendment.

 

“Purchase Price” means (a) the Cash Consideration and (b) the Purchaser Ordinary Shares Consideration, if any.

 

“Purchaser Ordinary Shares Consideration” means the number of Class A Ordinary Shares equal to the quotient of (i) the sum of (A) $60,000,000 and (B) the amount, if any, by which the Base Cash Consideration is reduced by the Purchaser in accordance with the terms of the definition of “Base Cash Consideration,” divided by (ii) the lowest per share price at which Class A Ordinary Shares are sold by the Purchaser to any Person from and after the date hereof but prior to, at or in connection with the Closing.

 

“Trigger Event” means the earliest to occur of (i) the volume weighted-average per-share trading price of Common Stock being at or above $20.00 per share for twenty (20) trading days in any thirty (30)-trading day continuous trading period during the Escrow Period, (ii) a Change in Control, and (iii) the expiration of the Escrow Period.

 

(d)          The following new term and reference thereto is inserted in the appropriate alphabetical order in Section 1.2 of the Agreement:

 

Additional Equity Financing		Section 5.13(a)
Escrowed Sponsor Shares		Section 5.22
Public Warrants		Section 4.2
Sponsor Warrants		Section 4.2

 

 

(e)          The following terms and the references thereto in Section 1.2 of the Agreement are hereby deleted in their entirety:

 

Acceleration Price		Section 2.6(e)
Earnout Period		Section 2.6(a)
Earnout Shares		Section 2.6(d)
Initial Escrowed Sponsor Shares		Section 5.22
Purchaser Unit		Section 4.2
Purchaser Warrants		Section 4.2
Secondary Escrowed Sponsor Shares		Section 5.22
Tier 1 Consideration		Section 2.6(b)
Tier 2 Consideration		Section 2.6(a)

 

4.             Amendments to Article II. Article II of the Agreement is hereby amended or modified as follows:

 

(a)           Section 2.4(a)(viii) of the Agreement is hereby amended and restated in its entirety as follows:

 

“deliver to the Sellers a fully executed copy of the Escrow Agreement.”

 

(b)          Section 2.4(b)(xi) of the Agreement is hereby amended and restated in its entirety as follows:

 

“[Reserved];”

 

(c)          Section 2.6 of the Agreement is hereby amended and restated in its entirety as follows:

 

“Section 2.6      [Reserved.]”

 

(d)          Section 2.9 of the Agreement is hereby amended and restated in its entirety as follows:

 

“Section 2.9       Equitable Adjustments. In the event of any share subdivision, share capitalization, share consolidation, merger, consolidation, recapitalization, restructuring or other change in the Purchaser’s equity securities from and after the date hereof, the amounts of (i) Purchaser Ordinary Shares Consideration (if such adjustment occurs following the date hereof but prior to Closing) and (ii) the Escrowed Sponsor Shares (if such adjustment occurs following the date hereof but prior to the release of the Escrowed Sponsor Shares) in each instance, shall be equitably adjusted to reflect such changes.”

 

 

5.             Amendments to Article IV. Article IV of the Agreement is hereby amended or modified as follows:

 

(a)           Section 4.2 is hereby amended or modified as follows:

 

(i)             The first three sentences of Section 4.2 are hereby amended and restated in their entirety as follows:

 

“As of the date of this Agreement, the authorized share capital of the Purchaser is divided into 200,000,000 Class A ordinary shares of a par value of $0.0001 each (“Class A Ordinary Shares”), 20,000,000 Class B ordinary shares of a par value of $0.0001 each (“Class B Ordinary Shares”), and 2,000,000 preference shares of a par value of $0.0001 each. The Purchaser has issued 6,750,000 warrants to the Purchaser Sponsor, each exercisable for one Class A Ordinary Share at a price of $11.50 per share (the “Sponsor Warrants”). At the close of business on December 16, 2019: (i) 30,000,000 Class A Ordinary Shares, including those subsumed within Units, were issued and outstanding; and (ii) 15,000,000 warrants, including those subsumed within Units but excluding the Sponsor Warrants (the “Public Warrants”), each exercisable for one Class A Ordinary Share at a price of $11.50 per share, were issued and outstanding.”

 

(ii)            The sixth and seventh sentences of Section 4.2 are hereby amended by (A) deleting the words “Purchaser Warrants” and replacing in lieu thereof the words “Public Warrants, Sponsor Warrants”; and (B) deleting the word “Purchaser” immediately prior to the word “Units” in each case.

 

(b)            Section 4.8 is amended by inserting immediately following the words “approval of the Purchaser Shareholder Proposals by the Purchaser Shareholders” the words “, the approval of the Warrant Amendment by the Public Warrantholders,” in clause (e) of such Section.

 

(c)            The first sentence of Section 4.13 is amended by (i) deleting the words “Purchaser Warrants” and replacing in lieu thereof the words “Public Warrants, Sponsor Warrants” and (ii) deleting the word “Purchaser” immediately prior to the word “Units.”

 

(d)            Section 4.15(a) is amended by inserting the words “the PIPE Investment and” immediately before “the Additional Equity Financing.”

 

(e)            Section 4.15(d) is hereby amended and restated in its entirety as follows:

 

 

“(d)          Assuming the satisfaction of the conditions set forth in Section 8.1 and Section 8.2, and after giving effect to (i) the PIPE Investment, when fully funded in accordance with the Subscription Agreements, (ii) any Additional Equity Financing, if any, and (iii) the Debt Financing, when fully funded in accordance with the Debt Commitment Letter, together with all available amounts in the Trust Account, will provide the Purchaser at the Closing with all funds necessary to pay the Cash Consideration, any amounts paid in connection with the Warrant Amendment and the Transaction Costs that are to be paid at the Closing (such obligations collectively, the “Aggregate Cash Obligations”).”

 

(f)           Section 4.15(e) is hereby amended and restated in its entirety as follows:

 

“(e)          To the Knowledge of the Purchaser, on the date of the Amendment, there is no fact or occurrence as of the date hereof that would cause any condition to the funding of the Financing not to be satisfied at or before the Closing, and the Purchaser has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of the Financing contained in the Debt Commitment Letter or Subscription Agreements, in each case, except for the accuracy of the representation and warranties in Article III and the compliance in all material respects by the Sellers and the Acquired Companies of the terms and conditions of this Agreement.”

 

(g)          Section 4.15 is amended by inserting a new Section 4.15(g) as follows:

 

“(g)          The Purchaser has made available to the Sellers true, correct and complete copies of the Subscription Agreements. As of the date of the Amendment, the Subscription Agreements (a) are in full force and effect without amendment or modification, (b) are valid, binding and enforceable obligations of the Purchaser (or its applicable Affiliate) and, to the Knowledge of the Purchaser, each other party thereto (except, in any case, as may be limited by Enforceability Exceptions) and (c) have not been withdrawn, terminated or rescinded in any respect. There are no other Contracts between the Purchaser and any PIPE Investor relating to any Subscription Agreement that would reasonably be expected to affect the obligations of the PIPE Investors to contribute to the Purchaser the applicable portion of the PIPE Investment set forth in the Subscription Agreements, and, to the Knowledge of the Purchaser, no facts or circumstances exist that may reasonably be expected to result in any of the conditions set forth in any Subscription Agreement not being satisfied, or the PIPE Investment not being available to the Purchaser, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of the Purchaser under any material term or condition of any Subscription Agreement and, as of the date hereof, the Purchaser has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of Closing to be satisfied by it contained in any Subscription Agreement. The Subscription Agreements contain all of the conditions precedent (other than the conditions contained in this Agreement as amended) to the obligations of the PIPE Investors to contribute to the Purchaser the applicable portion of the PIPE Investment set forth in the Subscription Agreements on the terms therein.”

 

 

6.             Amendments to Article V. Article V of the Agreement is hereby amended or modified as follows:

 

(a)          The preamble to Section 5.1(c) of the Agreement is hereby amended and restated in its entirety as follows:

 

“Except (i) as required by Law or pursuant to any Contract in existence as of the date of this Agreement, (ii) as expressly contemplated by this Agreement (as amended by the Amendment, including with respect to the Financing) or as consented to in writing by the Sellers (which consent shall not be unreasonably withheld, conditioned or delayed and it being understood that in the case of any failure to affirmatively deny consent within five (5) Business Days following receipt of a written request from the Purchaser for such consent, that request shall be deemed to be consented to), or (iii) as disclosed in Section 5.1 of the Purchaser Disclosure Schedule, the Purchaser shall not:”

 

(b)          Section 5.10(a) of the Agreement is hereby amended by inserting immediately after the words “The Purchaser will cause the Proxy Statement to be transmitted to the Purchaser Shareholders” the words “and the Public Warrantholders” in the last sentence of such Section.

 

(c)           Section 5.10(c) is hereby amended and restated in its entirety as follows:

 

“(c)          The Purchaser will take, in accordance with applicable Law, NASDAQ rules and the Purchaser Constitutional Documents, all action necessary to call, hold and convene an extraordinary general meeting of the Purchaser (including any permitted adjournment (the “Purchaser Extraordinary General Meeting”) to consider and vote upon the Purchaser Shareholder Proposals and the Warrant Amendment as promptly as practicable after the filing of the Form S-4 and Proxy Statement in definitive form with the SEC and in no event less than fifteen (15) Business Days (“Inside Date”) or more than thirty-five (35) days after the definitive Form S-4 and Proxy Statement is first transmitted to the Purchaser Shareholders and the Public Warrantholders, subject to the adjournment provisions below. Once the Purchaser Extraordinary General Meeting to consider and vote upon the Purchaser Shareholder Proposals and the Warrant Amendment has been called and noticed, except as required by Law, the Purchaser will not postpone or adjourn the Purchaser Extraordinary General Meeting without the consent of the Sellers (which consent will not be unreasonably withheld, conditioned or delayed) other than (1) for the absence of a quorum, or (2) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure that the Purchaser has determined in good faith, after consultation with its outside legal advisors, is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated to and reviewed by the Purchaser Shareholders and the Public Warrantholders prior to the Purchaser Extraordinary General Meeting or (3) an adjournment or postponement to solicit additional proxies from the Purchaser Shareholders and the Public Warrantholders to the extent the Purchaser has determined in good faith that such adjournment or postponement is reasonably necessary to obtain the approval of the Required Purchaser Shareholder Proposals and the Warrant Amendment, provided, that in the case of an postponement or adjournment in accordance with clause (1), (2) or (3), above, such postponement or adjournment (i) may be no more than ten (10) Business Days from the original date of the Purchaser Extraordinary General Meeting and (ii) for the avoidance of doubt shall not require the consent of the Sellers. Subject to Section 5.10(d), following delivery of the Form S-4 and Proxy Statement to the Purchaser Shareholders and the Public Warrantholders, the Purchaser will use reasonable best efforts to solicit approval of the Purchaser Shareholder Proposals and the Warrant Amendment by the Purchaser Shareholders and the Public Warrantholders.”

 

 

(d)           Section 5.10(d) is hereby amended or modified as follows:

 

(i)             The first two sentences of such Section are amended and restated in their entirety as follows:

 

“Subject to this Section 5.10(d), the Purchaser Board will recommend that the Purchaser Shareholders approve the Purchaser Shareholder Proposals and the Public Warrantholders approve the Warrant Amendment (collectively, the “Purchaser Board Recommendation”). Notwithstanding the foregoing, at any time prior to obtaining approval of the Purchaser Shareholder Proposals and the Warrant Amendment, the Purchaser Board may fail to make, amend, change, withdraw, modify, withhold or qualify the Purchaser Board Recommendation (any such action a “Change in Recommendation”) if the Purchaser Board shall have concluded in good faith, after consultation with its outside legal advisors and financial advisors, that a failure to make a Change in Recommendation would violate its fiduciary duties under applicable Law; provided, however, that the Purchaser Board shall not be entitled to exercise its rights to make a Change in Recommendation pursuant to this sentence unless (i) such Change in Recommendation is based upon an Intervening Event and (ii) unless the Purchaser has provided to the Sellers three (3) Business Days’ prior written notice advising the Sellers that the Purchaser Board intends to take such action and specifying the reasons therefor in reasonable detail (the “Notice Period”).”

 

 

(ii)              The last sentence of such Section is hereby amended by (i) inserting immediately after the words “for the purposes of voting on the Purchaser Shareholder Proposals” the words “and the Warrant Amendment”; and (ii) and inserting immediately after the words “for the approval of the Purchaser Shareholders” the words “and the Public Warrantholders.”

 

(e)          Section 5.13 of the Agreement is hereby amended and restated in its entirety as follows:

 

“Section 5.13      Additional Financing; Subscription Agreements.

 

(a)            At any time from and after the date of the Amendment, the Purchaser may, at its sole discretion, procure additional equity financing in addition to the PIPE Investment in the form of the issuance and sale of additional Class A Ordinary Shares from Persons and on terms reasonably acceptable to the Sellers (the “Additional Equity Financing”).

 

(b)            In the event that there is no longer a reasonable expectation that the PIPE Investment will be obtained in accordance with the Subscription Agreements, the Purchaser shall, in consultation with the Sellers, use reasonable best efforts to, as promptly as possible thereafter, obtain a binding commitment for a “term loan B” facility on the terms set forth on Section 5.13 of the Seller Disclosure Letter (such commitment letter, a “Term Loan B Commitment Letter”, and such financing, the “Term Loan B Financing”).

 

(c)            The Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or any replacements of, the Subscription Agreements without the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed. The Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper or advisable to consummate the transactions contemplated by the Subscription Agreements on the terms and conditions described therein, including using reasonable best efforts to (a) maintain in effect the Subscription Agreements, (b) satisfy in all material respects on a timely basis all conditions and covenants applicable to the Purchaser in the Subscription Agreements and otherwise comply with its obligations thereunder, (c) in the event that all conditions in the Subscription Agreements (other than conditions that the Purchaser or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived, cause the PIPE Investors to consummate transactions contemplated by the Subscription Agreements at or immediately prior to Closing and (d) enforce its rights under the Subscription Agreements in the event that all conditions in the Subscription Agreements (other than conditions that the Purchaser or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, including to cause the applicable PIPE Investors to contribute to the Purchaser the applicable portion of the PIPE Investment set forth in the Subscription Agreements. Without limiting the generality of the foregoing, the Purchaser shall give the Sellers, prompt written notice of: (i) any amendment to any Subscription Agreement (together with a copy of such amendment), (ii) actual breach or default by any party to any Subscription Agreement that the Purchaser has Knowledge of; (iii) the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual or claimed withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement and (iv) if the Purchaser does not expect to receive all or any portion of the PIPE Investment on the terms, in the manner or from the sources contemplated by the Subscription Agreements; provided that in no event will the Purchaser be under any obligation to disclose any information pursuant to this Section 5.13(c) that is subject to attorney-client or similar privilege.”

 

 

(f)             Section 5.22 of the Agreement is hereby amended and restated in its entirety as follows:

 

“Section 5.22      Escrowed Sponsor Shares. Immediately following the Closing, the Purchaser, the Purchaser Sponsor and the Purchaser’s transfer agent shall enter into an Escrow Agreement pursuant to which two million (2,000,000) shares of Common Stock (which, for the avoidance of doubt, will be converted at Closing from Class B Ordinary Shares) (the “Escrowed Sponsor Shares”) held by the Purchaser Sponsor shall be held subject to the Escrow Agreement and all share certificates (if any) in respect of the Escrowed Sponsor Shares shall be deposited into an escrow account (the “Sponsor Escrow”) established and maintained by the Purchaser’s transfer agent. The Sponsor Escrow shall also hold all dividends, distribution, or other proceeds as may be paid with respect to the Escrowed Sponsor Shares. Upon the occurrence of a Trigger Event (or in the case of a Trigger Event that is a Change in Control, immediately prior to the consummation of such Change in Control), the Purchaser Sponsor shall cause the Purchaser’s transfer agent to release the Escrowed Sponsor Shares from the Sponsor Escrow to the Purchaser Sponsor or its designee. For so long as the Escrowed Sponsor Shares are held in the Sponsor Escrow, the Purchaser Sponsor shall have the right to vote such shares.”

 

7.             Amendments to Article VIII. Article VIII of the Agreement is hereby amended or modified as follows:

 

(a)             Section 8.1(c) of the Agreement is hereby amended by replacing “(2018 Revision)” with “(2020 Revision).”

 

(b)            Section 8.1(d) of the Agreement is amended and restated in its entirety as follows:

 

 

“(d)           Minimum Cash. At the Closing Date, after giving effect to (i) the completion of the Offer and the consummation of all Purchaser Shareholder Redemption Rights in connection therewith; and (ii) all available amounts in the Trust Account, but excluding, for the avoidance of doubt, any proceeds contemplated by the Debt Financing, the PIPE Investment and the Additional Equity Financing, the Purchaser shall have Cash available to pay the Aggregate Cash Obligations in an amount equal to or exceeding $210,000,000.”

 

8.            Amendments to Section 9.1(b). Section 9.1(b) of the Agreement is hereby amended or modified as follows:

 

(a)             replacing “(2018 Revision)” with “(2020 Revision)” in Section 9.1(b)(iii); and

 

(b)             amending and restating Section 9.1(b)(iv) in its entirety as follows:

 

“(iv)          after giving effect to (A) the Offer and the consummation of all Purchaser Shareholder Redemption Rights in connection therewith; and (B) all available amounts in the Trust Account, but excluding for the avoidance of doubt any proceeds contemplated by the Debt Financing and the completion of the PIPE Investment and any Additional Equity Financing, the Purchaser does not have a sufficient amount of Cash necessary to satisfy the condition set forth in Section 8.1(d).”

 

9.            Section 10.2(b). Section 10.2(b) of the Agreement is amended by deleting the words “Section 2.6,” from such Section.

 

10.          Exhibits. Exhibit V attached to the Agreement is hereby deleted and replaced in its entirety with Annex A attached hereto.

 

11.          Effect of the Amendment. Except as expressly provided in this Amendment, all of the terms and provisions of the Agreement are and will remain in full force and effect and are hereby ratified and confirmed by the Parties. On and after the date hereof, each reference in the Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein” or words of like import, and each reference to the Agreement in any other agreements, documents, or instruments executed and delivered pursuant to, or in connection with, the Agreement, will mean and be a reference to the Agreement as amended by this Amendment.

 

 

12.           Miscellaneous.

 

(a)            This Amendment shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).

 

(b)            The headings in this Amendment are for reference only and shall not affect the interpretation of this Amendment.

 

(c)            This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Amendment delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Amendment.

 

[signature page follows]

 

 

IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above.

 

	FLAVORS HOLDINGS INC.
	By:	/s/ Edward Mammone
			Name:	Edward Mammone
			Title:	Senior Vice President, Controller
	MW HOLDINGS I LLC
	By:	Flavors Holdings Inc., its sole member
	By:	/s/ Edward Mammone
			Name:	Edward Mammone
			Title:	Senior Vice President, Controller
	MW HOLDINGS III LLC
	By:	Flavors Holdings Inc., its sole member
	By:	/s/ Edward Mammone
			Name:	Edward Mammone
			Title:	Senior Vice President, Controller
	MAFCO FOREIGN HOLDINGS, INC.
	By:	/s/ Marji Gordon Brown
			Name:	Marji Gordon-Brown
			Title:	Associate Tax Counsel

 

[Signature Page – Amendment No. 1 to Purchase Agreement]

 

 

IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above.

 

 

	ACT II GLOBAL ACQUISITION CORP.
	By:	/s/ Ira J. Lamel
			Name:	Ira J. Lamel
			Title:	Chief Financial Officer

 

[Signature Page – Amendment No. 1 to Purchase Agreement]

 

 

Exhibit 10.1

 

AMENDMENT NO. 1

TO

SPONSOR SUPPORT AGREEMENT

 

This AMENDMENT NO. 1 TO SPONSOR SUPPORT AGREEMENT (this “Amendment”) dated as of February 12, 2020, is made by and among Act II Global LLC, a Delaware limited liability company (together with its successors, the “Sponsor”), Act II Global Acquisition Corp., a Cayman Islands exempted company (“Act II”), Flavors Holdings Inc., a Delaware corporation (“Flavors Holdings”), MW Holdings I LLC, a Delaware limited liability company (“MW Holdings I”), MW Holdings III LLC, a Delaware limited liability company (“MW Holdings III”), and Mafco Foreign Holdings, Inc., a Delaware corporation (“Mafco Foreign Holdings” and together with Flavors Holdings, MW Holdings I and MW Holdings III, the “Sellers”). The Sponsor, Act II and the Sellers shall be referred to herein from time to time collectively as the “Parties.”

 

RECITALS

 

WHEREAS, Act II and the Sellers entered into a Purchase Agreement dated as of December 19, 2019 (as amended, supplemented, or modified, the “Purchase Agreement”);

 

WHEREAS, concurrently with the Purchase Agreement, the Parties entered into that certain Sponsor Support Agreement dated as of December 19, 2019 (the “Agreement”), whereby the Sponsor agreed to defer certain of its equity interests in Act II as of immediately following the Closing and agreed to certain covenants and agreements related to the transactions contemplated by the Purchase Agreement; and

 

WHEREAS, the Parties desire to amend the Agreement on the terms and subject to the conditions set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.            Definitions. Capitalized terms used and not defined in this Amendment have the respective meanings assigned to them in the Agreement.

 

2.            Amendments to the Agreement. The Agreement is hereby amended or modified as follows:

 

(a)          Section 1.b is amended and restated in its entirety as follows:

 

“b.     The Sponsor is the record owner of all of the outstanding shares of Act II’s Class B ordinary shares (the “Founder Shares”) and 6,750,000 warrants to purchase shares of Act II’s Class A ordinary shares at a price of $11.50 per share (the “Founder Warrants”) as of the date hereof, which constitutes all of the equity securities in Act II held by the Sponsor and its Affiliates as of the date hereof. Immediately after the Closing, all of the Forfeited Securities (as defined herein) and Escrowed Sponsor Shares (as defined herein) will be owned of record by the Sponsor, and all of the other Founder Shares and Founder Warrants will be owned of record by the Sponsor, which Escrowed Sponsor Shares, other Founder Shares and Founder Warrants owned of record by the Sponsor will constitute all of the equity securities in Act II held by the Sponsor and its Affiliates as of immediately after the Closing. The Sponsor has, or will have as of the date hereof and immediately prior to the Closing, as applicable, valid, good and marketable title to such equity securities, free and clear of all Liens (other than Liens pursuant to this Agreement or any other agreement contemplated by the Purchase Agreement and transfer restrictions under applicable Law or under the Organizational Documents of Act II). Except for this Agreement, the Sponsor is not party to any option, warrant, purchase right, or other contract or commitment that could require the Sponsor to sell, transfer, or otherwise dispose of the Escrowed Sponsor Shares. Except as disclosed in Act II’s public filings with the U.S. Securities and Exchange Commission at least one day prior to the date hereof or as provided in this Agreement, the Purchase Agreement, the Investors Agreement, or the Organizational Documents of the Sponsor, the Sponsor is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of the Founder Shares or the Founder Warrants. Neither the Sponsor, nor any transferees of any equity securities of Act II initially held by the Sponsor, has asserted or perfected any rights to adjustment or other anti-dilution protections with respect to any equity securities of Act II (including the Founder Shares and the Founder Warrants) (whether in connection with the transactions contemplated by the Purchase Agreement or otherwise).”

 

 

(b)         Section 2 is amended and restated in its entirety as follows:

 

“2.     Escrowed Sponsor Shares; Sponsor Forfeiture.

 

a.       The Sponsor hereby agrees that, on or prior to the Closing Date, the Sponsor shall enter into an Escrow Agreement, as contemplated under the Purchase Agreement, pursuant to which the Sponsor shall deposit an aggregate of 2,000,000 Class A ordinary shares (which, for avoidance of doubt, will be converted at Closing from Founder Shares) (the “Escrowed Sponsor Shares”), to be held and distributed by the Escrow Agent on the terms and conditions set forth therein. Subject to the terms and conditions of this Agreement, the Sponsor unconditionally and irrevocably agrees to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Section 2 of this Agreement.

 

b.       The Sponsor hereby agrees that, immediately following the Closing, the Sponsor shall automatically be deemed to irrevocably transfer to Act II, surrender and forfeit for no consideration (i) 3,000,000 Founder Shares and (ii) 6,750,000 Founder Warrants (collectively, the “Forfeited Securities”) and that from and after such time, such Forfeited Securities shall be deemed to be cancelled and no longer outstanding. The Sponsor hereby acknowledges and agrees that the Sponsor will waive any right that it might otherwise have in connection with the Warrant Amendment to receive a cash payment with respect to the Founder Warrants subject to the Warrant Amendment and agrees that no such cash payment will be made to the Sponsor in respect of any such Founder Warrants.”

 

(c)          Section 5.a is amended by deleting the words “amendment included in the Purchaser Shareholder Proposals” and replacing in lieu thereof the words “amendments included in the Purchaser Shareholder Proposals or the Warrant Amendment.”

 

3.            Effect of the Amendment. Except as expressly provided in this Amendment, all of the terms and provisions of the Agreement are and will remain in full force and effect and are hereby ratified and confirmed by the Parties. On and after the date hereof, each reference in the Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein” or words of like import, and each reference to the Agreement in any other agreements, documents, or instruments executed and delivered pursuant to or in connection with the Purchase Agreement or Ancillary Documents will mean and be a reference to the Agreement as amended by this Amendment.

 

 

4.            Miscellaneous.

 

(a)          This Amendment shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).

 

(b)          The headings in this Amendment are for reference only and shall not affect the interpretation of this Amendment.

 

(c)          This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Amendment delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Amendment.

 

 

IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be duly executed on its behalf as of the day and year first above written.

 

 

	ACT II GLOBAL LLC
	By:		/s/John Carroll
		Name:	John Carroll
		Title:	Managing Member

 

 

	ACT II GLOBAL ACQUISITION CORP.
	By:		/s/ Ira J. Lamel
		Name:	Ira J. Lamel
		Title:	Chief Financial Officer

 

[Signature Page to Amendment No. 1 to Sponsor Support Agreement]

 

 

IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be duly executed on its behalf as of the day and year first above written.

 

 

	FLAVORS HOLDINGS INC.
	By:		/s/ Edward Mammone
		Name:	Edward Mammone
		Title:	Senior Vice President, Controller

 

 

	MW HOLDINGS I LLC
	By:	Flavors Holdings, Inc., its sole member
	By:		/s/ Edward Mammone
		Name:	Edward Mammone
		Title:	Senior Vice President, Controller

 

 

	MW HOLDINGS III LLC
	By:	Flavors Holdings, Inc., its sole member
	By:		/s/ Edward Mammone
		Name:	Edward Mammone
		Title:	Senior Vice President, Controller

 

 

	MAFCO FOREIGN HOLDINGS, INC.
	By:		/s/ Marji Gordon Brown
		Name:	Marji Gordon-Brown
		Title:	Associate Tax Counsel

 

[Signature Page to Amendment No. 1 to Sponsor Support Agreement]

 

 

Exhibit 10.2

 

EXECUTION COPY

 

December 19, 2019

 

CONFIDENTIAL

Act II Global Acquisition Corp.

1345 Avenue of the Americas, 11th Floor

New York, NY 10105

Attention: Ira Lamel, Chief Financial Officer

 

Project Taste Commitment Letter

 

Ladies and Gentlemen:

 

Act II Global Acquisition Corp., a Cayman Islands exempted company (“you” or the “Borrower”), has advised The Toronto-Dominion Bank, New York Branch (“TDNY”) and TD Securities (USA) LLC (“TDSL”, and together with TDNY, collectively, “TD”, “we”, “us” or the “Commitment Parties”), that you intend to acquire (the “Acquisition”), all of the outstanding equity interests of Merisant Company, a Delaware corporation (“Merisant”), Mafco Worldwide LLC, a Delaware limited liability company (“Mafco”), Merisant Luxembourg, Sarl, a Société à responsabilité limitée organized under the Laws of Luxembourg, Mafco Worldwide LLC, a Delaware limited liability company, Mafco Shanghai LLC, a Delaware limited liability company, EVD Holdings LLC, a Delaware limited liability company, and Mafco Deutschland GmbH, a private limited company organized under the Laws of Germany (collectively, and together with Merisant and Mafco, the “Targets”, and together with their subsidiaries, the “Acquired Business”), and to consummate the other transactions described in the Transaction Summary attached hereto as Exhibit A (the “Transaction Summary”). Capitalized terms used but not defined herein are used with the meanings assigned to them in the Transaction Summary, the Summary of Terms and Conditions attached hereto as Exhibit B (the “Term Sheet”), or the Summary of Conditions Precedent to the Credit Facilities attached hereto as Exhibit C (such Exhibits A, B and C, together with this commitment letter, this “Commitment Letter”).

 

1.       Commitments: Titles and Roles.

 

We are pleased to advise you that Toronto Dominion (Texas) LLC (“TDTX”) agrees to act, and you hereby appoint TDTX to act, as administrative agent and collateral agent (in such capacities, the “Administrative Agent”) for the financial institutions and other lenders who commit to lend under the Credit Facilities (as defined below) (collectively with TDNY and in their capacities as such, the “Lenders”) and that TDNY hereby commits to provide 100% of the aggregate principal amount of the (a) a senior secured term loan facility (the “Term Facility”) in an aggregate principal amount not to exceed $185.0 million and (b) a $50.0 million senior secured revolving credit facility (the “Revolving Facility” and, together with the Term Facility, the “Credit Facilities”), upon the terms and subject only to the conditions set forth in this Commitment Letter.

 

  

TDSL will act, and you hereby appoint TDSL to act, as Sole Lead Arranger and Sole Book Runner for the Credit Facilities (in such capacity, the “Lead Arranger”). In addition, the Lead Arranger shall have “left side” designation and shall appear on the top left of any Information (as defined below) for the Credit Facilities and all other offering or marketing materials in respect of the Credit Facilities. Except as set forth below, you agree that no other agents, co-agents or arrangers will be appointed, no other titles will be awarded and no compensation (other than that expressly contemplated by the Commitment Letter and Fee Letter (as defined below)) will be paid in connection with the Credit Facilities unless you and the Lead Arranger shall so agree. The Lead Arranger agrees to use commercially reasonable efforts to syndicate each Credit Facility to other Lenders. The Lead Arranger intends, and reserves the right, to syndicate all or a portion of the Credit Facilities to additional Lenders as more fully described below.

 

Notwithstanding the foregoing, you may, on or prior to the date which is twenty (20) business days after the date of this Commitment Letter, appoint additional agents, co-agents, lead arrangers, bookrunners, managers or arrangers (any such agent, co-agent, lead arranger, bookrunner, manager or arranger, an “Additional Agent”) or confer other titles (other than Administrative Agent or Collateral Agent) in respect of any Credit Facility in a manner determined by you and the Lead Arranger, and having aggregate economics not in excess of a proportion to be agreed between the Lead Arranger and you (it being understood that, (x) each such Additional Agent (or its affiliate) shall assume a proportion of the commitments with respect to such Credit Facility that is equal to the proportion of the economics allocated to such Additional Agent (or its affiliates), (y) to the extent you appoint Additional Agents or confer other titles in respect of any Credit Facility, the economics allocated to, and the commitment amounts of, the relevant initial lenders in respect of such Credit Facility will be proportionately reduced by the amount of the economics allocated to, and the commitment amount of, such Additional Agent (or its affiliate), in each case upon the execution and delivery by such Additional Agent of customary joinder documentation acceptable to you and, thereafter, each such Additional Agent shall constitute a “Commitment Party,” and/or “Lead Arranger”, as applicable, under this Commitment Letter and under the Fee Letter delivered in connection herewith (the “Fee Letter”)) and (z) in no event shall TDSL and TDNY, as the Commitment Parties party to this commitment Letter as of the date hereof (the “Initial Commitment Parties”), be entitled to less than 65% of the aggregate economics of each of the Credit Facilities (exclusive of the annual agency fees set forth in the Fee Letter).

 

2.       Conditions Precedent.

 

TDNY’s commitments and agreements and the initial funding of the Credit Facilities on the Closing Date are subject only to the conditions set forth in Exhibit C.

 

Notwithstanding anything in this Commitment Letter, the Fee Letter or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (a) the only representations the making and accuracy of which will be a condition to the availability of the Credit Facilities on the Closing Date will be (i) the representations or warranties made by or on behalf of the Sellers (as defined in Exhibit A) and/or Acquired Business in the Acquisition Agreement as are material to the interests of the Lenders (but only to the extent that you or your affiliates have the right to terminate your or their obligations under the Acquisition Agreement or decline to consummate the Acquisition as a result of a breach of such representations or warranties in the Acquisition Agreement) (the “Specified Acquisition Representations”) and (ii) the Specified Representations (as defined below), and (b) the terms of the Credit Documentation (as defined in Exhibit B) will be such that they do not impair the availability of the Credit Facilities on the Closing Date if the conditions set forth in Exhibit C hereto are satisfied or waived (it being understood that to the extent any security interest in the intended collateral (other than any collateral the security interest in which may be perfected by the filing of a UCC financing statement, the filing of intellectual property security agreements in connection with any material intellectual property with the United States Patent and Trademark Office and the United States Copyright Office or the delivery of stock certificates or equivalent instruments together with stock powers or equivalent instruments of transfer executed in blank) is not provided or perfected on the Closing Date after your use of commercially reasonable efforts to do so, the perfection of such security interest(s) will not constitute a condition precedent to the availability of the Credit Facilities on the Closing Date but such security interest(s) will be required to be perfected within 60 days (or such longer period as the Lead Arranger may reasonably agree in its discretion) after the Closing Date pursuant to arrangements to be mutually agreed by the Lead Arranger and the Borrower). As used herein, “Specified Representations” means representations and warranties of the Borrower and the Guarantors (to the extent applicable) relating to legal existence, good standing, due organization, power and authority as they relate to execution, delivery, and performance of the Credit Documentation, the due authorization, execution, delivery and enforceability of the Credit Documentation, the Credit Documentation not conflicting with charter documents, solvency of Borrower and its subsidiaries on a consolidated basis as of the Closing Date after giving effect to the Transactions, Federal Reserve margin regulations, Investment Company Act, Beneficial Ownership Certification and Patriot Act, and, subject to the limitations on provision and perfection of security interests set forth in the preceding sentence, creation, validity, priority (subject to liens (a) permitted under the Credit Documentation or (b) securing indebtedness to be refinanced in full and to be released concurrently with the initial funding of the Credit Facilities on terms satisfactory to the Lead Arranger) and perfection of security interests granted in the proposed collateral, and with respect to use of proceeds of the Credit Facilities, FCPA, OFAC, and other applicable anti-corruption, anti-bribery, anti-terrorism and sanctions laws. This paragraph is referred to as the “Certain Funds Provision”.

 

 

As consideration for the commitment of TDNY hereunder and the agreement of each Commitment Party and the Administrative Agent to perform the services described herein, you agree to pay or to cause to be paid the fees described in the Commitment Letter and the Fee Letter on the terms and subject to the conditions set forth herein.

 

3.       Syndication.

 

As noted above, we intend to form a syndicate of Lenders to join TDNY in entering into the Credit Facilities at or after closing. You understand and agree that we intend to commence syndication efforts promptly after your execution and delivery of this letter. You agree that we will, in consultation with you, manage all aspects of the arrangement and syndication of the Credit Facilities, including decisions as to the selection of institutions to be approached, when they will be approached, when their commitments will be accepted, the allocation of the aggregate commitment among the Lenders, the awarding of titles and the distribution of compensation among the Lenders; provided that we shall not syndicate the Credit Facilities to (1) any person or financial institution identified by you to us in writing prior to the date hereof and any of such person’s or institutions affiliates that are clearly identifiable as such by their name, (2) any other person that is a competitor of the Borrower or any of its subsidiaries designated by the Borrower as a “Competitor” by written notice delivered to the Administrative Agent from time to time and any of such person’s or institutions affiliates that are clearly identifiable as such by their name (each such excluded entity, a “Disqualified Institution”); provided further that, (i) to the extent persons are identified as a Disqualified Institution in writing by you or the Borrower to the Administrative Agent after the date hereof pursuant to clause (2) above, such designation shall become effective three business days thereafter and the inclusion of such persons as Disqualified Institution shall not retroactively apply to disqualify any persons that have previously acquired an assignment or participation in the Credit Facilities; provided further, that the term “Disqualified Institution” shall exclude any person that you or the Borrower have designated as no longer being a “Disqualified Institution” by written notice delivered to us from time to time and (ii) neither the Administrative Agent or the Lead Arranger, (a) shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce compliance with, the provisions of the Credit Documentation relating to Disqualified Institutions or (b) shall have any liability with respect to or arising out of any assignment or participation of any loan or commitment, or disclosure of confidential information, to any Disqualified Institution.

 

 

We intend to syndicate each of the Credit Facilities, prior to or after the execution of definitive documentation in respect of each such Credit Facility, to other Lenders; provided that, notwithstanding our right to syndicate the Credit Facilities and receive commitments with respect thereto, it is agreed that any syndication of, or receipt of commitments in respect of, all or any portion of TDNY’s commitments hereunder prior to the initial funding under the Credit Facilities shall not be a condition to our commitments nor reduce TDNY’s commitments hereunder with respect to any of the Credit Facilities (provided, however, that, notwithstanding the foregoing, assignments of TDNY’s commitments, which are effective simultaneously with the funding of such commitments by the assignee, shall be permitted).

 

You agree to actively assist us, and agree to use commercially reasonable efforts to cause the Targets to actively assist us, in forming the syndicate of Lenders (other than any Disqualified Institutions) that is reasonably satisfactory to us and you until the date that is the earlier of (i) a Successful Syndication (as defined in the Fee Letter) and (ii) 60 days after the Closing Date (such period, the “Syndication Period”). During the Syndication Period, such assistance shall include, without limitation: (i) with respect to the Credit Facilities, assistance in the preparation of a confidential information memorandum and other marketing materials to be used in the syndication of each such Credit Facility, including the delivery of all financial and other information reasonably requested by us for inclusion in such memorandum and materials (collectively, the “Confidential Information Memoranda”), (ii) providing us with all financial and other information (including financial estimates, financial models, forecasts and other forward-looking information, the “Projections”), prepared by you or your advisors relating to you, the Targets, your and their respective subsidiaries and the transactions described herein, all as reasonably requested by us, including a business plan for fiscal years 2020 through 2024, and updated as may be reasonably requested by us through the closing of the Credit Facilities, it being understood by you that we shall be relying on such information and Projections in syndicating and arranging the Credit Facilities, (iii) the presentation of one or more information packages reasonably acceptable in format and content to the Lead Arranger (collectively, the “Lender Presentation”) in meetings and other communications with prospective Lenders or agents in connection with the syndication of the Credit Facilities (including, without limitation, direct contact between and meetings with senior management and representatives, with appropriate seniority and expertise, of the Borrower and the use of commercially reasonable efforts to provide direct contact between and meetings with senior management and representatives, with appropriate seniority and expertise, of the Acquired Business), (iv) using commercially reasonable efforts to ensure that the syndication benefits from the existing lending relationships of the Borrower and, to the extent practical and appropriate, the Acquired Business, (v) hosting, with us, one or more meetings with prospective Lenders under each of the Credit Facilities at reasonable times, dates and locations to be mutually agreed upon (and using your commercially reasonable efforts to cause the senior management of the Acquired Business to be available for such meetings), (vi) providing us with copies of all due diligence reports or summaries reasonably requested by us and available to you and prepared in connection with the Acquisition by legal, insurance, tax, accounting or other advisors, each subject to the delivery by us to you and the preparers of such reports of customary non-disclosure and non-reliance agreements as shall be reasonably requested, (vii) at least five business days prior to the Closing Date, delivering to us for posting to the proposed syndicate of Lenders a copy of each credit agreement in respect of the Credit Facilities in the respective forms agreed by us and the Borrower and (viii) promptly providing us with any other information reasonably requested by us to successfully complete the syndication. You will be solely responsible for the contents of the Confidential Information Memoranda and all other information, documentation or materials delivered to either Commitment Party in connection therewith (collectively, the “Information”) and acknowledge that each Commitment Party will be using and relying upon the Information without independent verification thereof. You agree that Information regarding the Credit Facilities and Information provided by you, the Acquired Business or your or their respective representatives to either Commitment Party in connection with the Credit Facilities (including, without limitation, draft and execution versions of the Credit Documentation, the Confidential Information Memoranda and the Lender Presentation) may be disseminated to potential Lenders and other persons through one or more internet sites (including a Debtdomain, IntraLinks, SyndTrak or other electronic workspace (the “Platform”)) created for purposes of syndicating the Credit Facilities or otherwise, in accordance with the Lead Arranger’s standard syndication practices, and you acknowledge that neither the Lead Arranger nor any of its affiliates will be responsible or liable to you or any other person or entity for damages arising from the use by others of any Information or other materials obtained on the Platform.

 

 

Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, neither the commencement nor the completion of the syndication of the Credit Facilities shall constitute a condition precedent to the availability and initial funding of the Credit Facilities on the Closing Date.

 

To facilitate an orderly and successful syndication of the Credit Facilities, you agree that during the Syndication Period you will not, and you will use commercially reasonable efforts to cause each Target not to syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of, any debt facility or any debt or equity security of the Acquired Business, the Borrower or any of your or their respective subsidiaries or affiliates of the Borrower (other than (x) the Credit Facilities and other indebtedness contemplated hereby to remain outstanding after the Closing Date and (y) any extension of the maturity of any of the existing indebtedness under Existing Credit Agreements (as defined in the Acquisition Agreement)), including any renewals or refinancings of any existing debt facility or debt security, without the prior written consent of the Lead Arranger, if such syndication or issuance, in the reasonable opinion of the Lead Arranger, would reasonably be expected to impair the primary syndication of the Credit Facilities in any material respect; provided that, on or prior to the date of mailing by the SPAC of the definitive proxy statement in respect of the Proxy Process, following prior written notice thereof to the Lead Arranger and without limiting the “alternate transaction fee” language in the Fee Letter, you shall be entitled to take the foregoing actions with respect to a “term loan B” or debt securities financing of the Acquisition. You acknowledge and agree to the disclosure by us, after the execution of the Credit Agreement, of information related to the Credit Facilities to “Gold Sheets” and other similar trade publications, and to our publication of tombstones and similar advertising materials relating to the Credit Facilities. The information disclosed shall consist of deal terms and other information customarily found in such publications, tombstones and advertising materials.

 

 

Notwithstanding the Lead Arranger’s right to syndicate the Credit Facilities, (other than as set forth in Section 1 above with respect to Additional Agents) no initial lender shall be relieved or released from its commitment hereunder prior to the funding thereof on the Closing Date in connection with any syndication, assignment or participation of such Credit Facilities.

 

You acknowledge that certain of the Lenders may be “public side” Lenders (i.e. Lenders that do not wish to receive material non-public information with respect to you, the Targets or your or their respective affiliates or any of your or their respective securities) (each, a “Public Lender”). At the request of the Lead Arranger, you agree to prepare an additional version of the Confidential Information Memoranda for the Credit Facilities, the Lender Presentation and other information materials to be used by Public Lenders that do not contain material non-public information concerning you, the Targets or your or their respective affiliates or securities. It is understood that in connection with your assistance described above, you will provide, and cause all other applicable persons to provide, customary authorization letters to the Lead Arranger authorizing the distribution of the Information to prospective Lenders, containing a representation to the Lead Arranger that the public-side version does not include material non-public information about you, the Targets or your or their respective affiliates or your or their respective securities. In addition, you will clearly designate as such all Information provided to either Commitment Party and the Administrative Agent by or on behalf of you or the Acquired Business that is suitable to make available to Public Lenders. You acknowledge and agree that the following documents may be distributed to Public Lenders: (a) drafts and final versions of the Credit Documentation; (b) administrative materials prepared by the Lead Arranger for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (c) term sheets and notification of changes in the terms of the Credit Facilities. You agree that information materials made available to prospective Public Lenders in accordance with this Commitment Letter shall not contain material non-public information.

 

4.       Information.

 

You represent and warrant that (in each case, to your knowledge based on reasonable investigation with respect to the Targets and the Acquired Business) (i) all Information (other than Projections) provided directly or indirectly by or on behalf of you or any of your representatives or the Acquired Business to the Lead Arranger or the Lenders, any prospective Lender or any of their affiliates in connection with the transactions contemplated hereunder when furnished is and will be, when taken as a whole, complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading and (ii) the Projections that have been or will be made available to the Lead Arranger or the Lenders by or on behalf of you or any of your representatives, the Acquired Business when furnished have been and will be prepared in good faith based upon assumptions that are believed by the preparer thereof to be reasonable at the time such Projections are furnished to the Lead Arranger or the Lenders, it being understood and agreed that Projections are not a guarantee of financial performance and actual results may differ from Projections and such differences may be material. You agree that if at any time during the Syndication Period, any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will promptly supplement, or cause to be supplemented, the Information and Projections so that such representations and warranties will be true and correct under those circumstances. You agree that upon the written reasonable request of the Lead Arranger during the Syndication Period, you will provide updated Projections and will respond to requests for updated information; provided that no information in such updates shall affect the availability of the financing on the Closing Date absent a failure in the conditions set forth in Section 2 or Exhibit C. In issuing this commitment and in arranging and syndicating each of the Credit Facilities, each Commitment Party is and will be using and relying on the Information and the Projections without independent verification thereof.

 

 

5.       Indemnification and Related Matters.

 

You agree, whether or not the transactions contemplated hereby are closed, to indemnify and hold harmless TDTX, the Commitment Parties, their affiliates, and each of their respective directors, officers, shareholders, partners, employees, agents, advisors, legal counsel, consultants, controlling persons and other representatives and the successors and assigns of each of the foregoing (collectively, the “Indemnified Parties”) from and against (and will reimburse each Indemnified Party as the same are incurred (or, in the case of expenses of external counsel, within thirty days of demand)) any and all claims and documented out-of-pocket losses, damages, costs, expenses (including, without limitation, the reasonable and documented or invoiced out-of-pocket legal expenses of one firm of external counsel for all such Indemnified Parties, taken as a whole, of a single regulatory counsel and of a single local external counsel in each jurisdiction (which may include a single special external counsel acting in multiple jurisdictions) for all such Indemnified Parties, taken as a whole (and, in the case of an actual conflict of interest where the Indemnified Party affected by such conflict informs you of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnified Party)) and liabilities (collectively, such losses, claims, damages, costs, expenses and liabilities “indemnified liabilities”) to which any of them may become subject, insofar as such indemnified liabilities (or actions, suits, or proceedings, including any inquiry or investigation or claim, in respect thereof) arise out of, in any way relate to, or result from a claim in respect of, this Commitment Letter or the Fee Letter, the financing contemplated hereby, or the transactions to be financed (whether or not any Indemnified Party is a party to any action or proceeding out of which any such indemnified liabilities arise and whether or not any action or proceeding out of which any such indemnified liabilities arise are brought by you, your equity holders, affiliates, creditors, the Targets or any other third person), and to reimburse each Indemnified Party upon demand for any legal or other expenses incurred in connection with investigating or defending any of the foregoing, provided that you shall not be obligated to indemnify, hold harmless or reimburse any Indemnified Party for any indemnified liabilities to the extent that the same are determined in a final judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct or material breach of its obligations hereunder of such Indemnified Party or any of its affiliates under common control. If the Closing Date occurs, you also agree to reimburse us promptly on demand for all reasonable and documented out-of-pocket costs and expenses (including, without limitation, due diligence expenses, syndication expenses, travel expenses, and reasonable fees, charges and disbursements of one external counsel to the Lead Arranger, a single regulatory counsel and of a single local counsel to the Lead Arranger in each jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and of such other external counsel retained with your prior written consent (such consent not to be unreasonably withheld or delayed)) incurred in connection with the Transactions, the Credit Facilities and the syndication and administration thereof (including, without limitation, all such costs and expenses incurred in connection with the preparation, negotiation, execution and delivery of this Commitment Letter and the Fee Letter and the definitive financing documentation for the Credit Facilities and in performing due diligence related to the Credit Facilities) and the other transactions contemplated hereby. Such costs and expenses shall include, without limitation, costs and expenses incurred in connection with the establishment and maintenance of an internet site to be used in the syndication of the Credit Facilities.

 

 

Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified Party shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent that such damages are found by a final judgment of a court of competent jurisdiction to have resulted from the willful misconduct or gross negligence of such Indemnified Party, and (ii) without limiting the indemnification and reimbursement obligations set forth above, none of us, you, or any Indemnified Party shall be liable for any indirect, special, punitive, exemplary or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with this Commitment Letter, the Fee Letter, the Transactions (including the Credit Facilities and the use of proceeds thereunder), or with respect to any activities related to the Credit Facilities, including the preparation of this Commitment Letter, the Fee Letter and the Credit Documentation; provided that nothing contained in this sentence shall limit your indemnification obligations to the extent set forth hereinabove to the extent such indirect, special, punitive, exemplary or consequential damages are included in any third party claim in connection with which such indemnified person is entitled to indemnification hereunder.

 

You shall not be liable for any settlement of any proceeding effected without your written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with your written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction for the plaintiff in any such proceeding, in each case, you agree to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this Section 5.

 

You shall not, without the prior written consent of any Indemnified Party (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability or claims that are the subject matter of such proceedings and (ii) does not include any statement as to or any admission by or on behalf of any Indemnified Party.

 

 

6.       Confidentiality.

 

Please note that this Commitment Letter, the Fee Letter and any written communications provided by, or oral discussions with, TDTX or the Commitment Parties in connection with this arrangement are exclusively for your information and for the information of your officers, directors, agents and advisors who are directly involved in the Transactions, on a confidential basis, and may not be disclosed to any other third party or circulated or referred to publicly without our prior written consent except, after providing written notice to the Lead Arranger, pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial, administrative or legislative body or committee; provided that we hereby consent to your disclosure of (i) this Commitment Letter or the information contained herein (but not the Fee Letter or the information contained therein, except to the extent that portions thereof have been redacted in a manner reasonably acceptable to the Lead Arranger) to the Targets and Sellers to the extent you notify the Targets and Sellers of their obligations to keep such material confidential, and to the Targets’ and Sellers’ respective officers, directors, agents and advisors who are directly involved in the transactions described in the Transaction Summary, (ii) this Commitment Letter and the Fee Letter as required by applicable law or compulsory legal process, including to the extent required under applicable securities laws or by the United States Securities and Exchange Commission (in each case, you agree, to the extent not prohibited by law, to inform us in advance thereof), (iii) this Commitment Letter and its contents (but not the Fee Letter), in any syndication or other marketing materials in connection with the Credit Facilities, (iv) the aggregate fee amount contained in the Fee Letter as part of Projections, pro forma information or a generic disclosure of aggregate sources and uses related to the Transactions to the extent customary or required in offering and marketing materials for the Credit Facilities, and (v) any such confidential information to the extent that such information becomes publicly available other than by reason of disclosure by you in violation of this paragraph. The requirements of this paragraph shall terminate on the date that is the earlier of (i) two years after the date of execution of this Commitment Letter and (ii) the Closing Date, at which time any confidentiality undertaking in the Credit Documentation shall supersede the provisions of this paragraph.

 

Each Commitment Party shall use all confidential information received by it in connection with the Transaction solely for the purposes of providing the services that are the subject of this Commitment Letter and shall treat confidentially all such information; provided, however, that nothing herein shall prevent any Commitment Party from disclosing any such information (a) pursuant to the order of any court or administrative agency or otherwise as required by applicable law or regulation or as requested or demanded by a governmental authority (in which case such Commitment Party, to the extent practicable and permitted by law and except with respect to any audit or examination conducted by bank accountants or any governmental bank authority exercising examination or regulatory authority, agrees to inform you promptly thereof), (b) to the extent that such information becomes publicly available other than by reason of disclosure by such Commitment Party in violation of this paragraph, (c) to the extent that such information is received by such Commitment Party from a third party that is not to such Commitment Party’s knowledge subject to confidentiality obligations to you, (d) to the extent that such information is independently developed by such Commitment Party, (e) to such Commitment Party’s affiliates and to such Commitment Party’s and its affiliates’ respective directors, officers, shareholders, partners, employees, legal counsel, consultants, advisors, independent auditors and other experts or agents who need to know such information in connection with the Transactions and are informed of the confidential nature of such information and are bound to maintain the confidentiality of such information, (f) to prospective Lenders, participants or assignees or any potential counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any of its subsidiaries or any of your or their respective obligations, in each case who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph), (g) for purposes of establishing a “due diligence” defense or a defense against a claim that a Commitment Party has breached its confidentiality obligations or (h) in protecting and enforcing the Commitment Parties’ rights with respect to this Commitment Letter, the Fee Letter or the Credit Documentation. The requirements of this paragraph shall terminate on the date that is the earlier of (i) two years after the date of execution of this Commitment Letter and (ii) the Closing Date, at which time any confidentiality undertaking in the Credit Documentation shall supersede the provisions of this paragraph.

 

 

7.       Assignments.

 

This Commitment Letter shall not be assignable by you without the prior written consent of each Commitment Party (and any purported assignment without such consent shall be null and void). This Commitment Letter and the commitments and undertakings hereunder are solely for your benefit, and only you may rely thereon. The Commitment Letter is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and any Indemnified Parties). In no event shall TDNY, TDTX or the Lead Arranger have any obligation to any third party with respect to any provision of this Commitment Letter or the Fee Letter. Each Commitment Party may assign its commitment hereunder, in whole or in part, to any of its affiliates or to any Lender; provided that such Commitment Party (a) shall not be released from the portion of its commitment hereunder so assigned to the extent such assignee fails to fund the portion of the commitment assigned to it on the Closing Date notwithstanding the satisfaction of the conditions to such funding set forth herein and (b) at all times shall retain exclusive control over all of its rights and obligations with respect to its commitments in respect of the Credit Facilities, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Closing Date has occurred.

 

8.       Absence of Fiduciary Relationship; Affiliates; Etc.

 

As you know, TDSL, TDNY, TDTX and their affiliates (collectively, the “TD Group”) together comprise a full service financial services firm engaged, either directly or through affiliates, in various activities, including securities trading, investment banking and financial advisory, investment management, principal investment, hedging, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, the TD Group may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and/or financial instruments (including bank loans) for its own account and for the accounts of its customers and may at any time hold long and short positions in such securities and/or instruments. Such investments and other activities may involve securities and instruments of you, the Targets, as well as of other entities and persons and your and their affiliates that may (i) be involved in transactions arising from or relating to the engagement contemplated by this Commitment Letter, (ii) be customers or competitors of the Borrower or the Targets, or (iii) have other relationships with the Borrower or the Targets. In addition, the TD Group may provide investment banking, underwriting and/or financial advisory services to such other entities and persons. The TD Group may also co-invest with, make direct investments in, and/or invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of you, the Targets or such other entities. The transactions contemplated by this Commitment Letter may have a direct or indirect impact on the investments, securities and instruments referred to in this paragraph. Although the TD Group in the course of such other activities and relationships may acquire information about the transaction contemplated by this Commitment Letter or other entities and persons that may be the subject of the transactions contemplated by this Commitment Letter, the TD Group shall have no obligation to disclose such information, or the fact that the TD Group is in possession of such information, to the Borrower or to use such information on the Borrower’s behalf.

 

 

Consistent with the TD Group’s policies to hold in confidence the affairs of its customers, the TD Group will not furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter to any of its other customers. Furthermore, you acknowledge that no member of the TD Group nor any of its affiliates has an obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained or that may be obtained by them from any other person.

 

The TD Group may have economic interests that conflict with those of you, your equity holders and/or your affiliates. You agree that each Commitment Party will act under this Commitment Letter as an independent contractor and that nothing in this Commitment Letter or the Fee Letter or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between either Commitment Party and you, your equity holders or your affiliates. You acknowledge and agree that the transactions contemplated by this Commitment Letter and the Fee Letter (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between each applicable Commitment Party, on the one hand, and you and your affiliates, on the other, and in connection therewith and with the process leading thereto, (i) neither Commitment Party has assumed any advisory or fiduciary responsibility in favor of you, your equity holders or your affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether such Commitment Party or any of affiliates has advised, is currently advising or will advise you, your equity holders or your affiliates on other matters) or any other obligation to you, your equity holders or your affiliates or any other person except the obligations expressly set forth in this Commitment Letter and the Fee Letter and (ii) each Commitment Party is acting solely as a principal and not as the agent or fiduciary of you, your management, equity holders, affiliates, creditors or any other person. You acknowledge and agree that you have consulted your own legal and financial advisors to the extent you deem appropriate and that you are responsible for making your own independent judgment with respect to such transactions and the process leading thereto. You agree that you will not claim that the either Commitment Party has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to you, in connection with such transactions or the process leading thereto. In addition, TDNY, TDTX and TDSL may employ the services of their affiliates in providing services and/or performing their obligations hereunder and may exchange with such affiliates information concerning you, the Acquired Business and other companies that may be the subject of this arrangement, and such affiliates will be entitled to the benefits afforded to TDNY, TDTX and TDSL hereunder.

 

In addition, you each acknowledge and agree that neither Commitment Party is advising you as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. You shall consult with your own advisors concerning such matters and shall be responsible for making your own independent investigation and appraisal of the transactions contemplated hereby, and neither of the Commitment Parties shall have any responsibility or liability to you with respect thereto. Any review by TDNY, TDTX or the Lead Arranger of the Borrower, of the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of TDNY, TDTX, the Lead Arranger and their affiliates and shall not be on your behalf. Notwithstanding anything herein to the contrary, you (and each of your 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 Credit Facilities and all materials of any kind (including opinions or other tax analyses) that are provided to you relating to such tax treatment and tax structure. However, any information relating to the tax treatment or tax structure will remain subject to the confidentiality provisions hereof (and the foregoing sentence will not apply) to the extent reasonably necessary to enable the parties hereto, their respective affiliates, and their respective affiliates’ directors and employees to comply with applicable securities laws. For this purpose, “tax treatment” means U.S. federal or state income tax treatment, and “tax structure” is limited to any facts relevant to the U.S. federal income tax treatment of the transactions contemplated by this Commitment Letter but does not include information relating to the identity of the parties hereto or any of their respective affiliates.

 

 

9.       Miscellaneous.

 

By executing this Commitment Letter, you acknowledge that this Commitment Letter and the Fee Letter, taken together, are the only agreement between you and us with respect to the Credit Facilities and set forth our entire understanding with respect thereto. This Commitment Letter and the Fee Letter may be changed only by a writing signed by each of the parties thereto. This Commitment Letter may be executed in counterparts and by different parties on separate counterpart signature pages, each of which constitutes an original and all of which taken together constitute one and the same agreement. Delivery of a counterpart hereof by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart hereof.

 

The provisions set forth under Sections 3 (Syndication), 4 (Information), 5 (Indemnification and Related Matters), 6 (Confidentiality), 7 (Assignments) and 8 (Absence of Fiduciary Relationship; Affiliates; Etc.) hereof and this Section 9 (Miscellaneous) hereof will remain in full force and effect regardless of whether definitive Credit Documentation is executed and delivered; provided that the provisions of Sections 3 and 4 shall automatically terminate on the expiration of the Syndication Period. The provisions set forth under Sections 5, 6, 7 and 8 hereof and this Section 9 will remain in full force and effect notwithstanding the expiration or termination of this Commitment Letter or the Commitment Parties’ commitments and agreements hereunder.

 

This Commitment Letter and the Fee Letter and any claim, controversy or dispute arising thereunder or related thereto (whether based upon contract, tort or otherwise) shall be governed by, and construed in accordance with, the laws of the State of New York without regard to the conflict of law principles thereof. Each party hereto consents to the exclusive jurisdiction and venue of any Federal court of the United States of America sitting in the Borough of Manhattan or, if that court does not have subject matter jurisdiction, in any state court located in the City and County of New York. Each party hereto irrevocably waives, to the fullest extent permitted by applicable law, (a) any right it may have to a trial by jury in any legal proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby (whether based on contract, tort or any other theory) and (b) any objection that it may now or hereafter have to the laying of venue of any such legal proceeding in the Federal Court of the United States of America sitting in the Borough of Manhattan or any state court located in the City and County of New York. You and we irrevocably agree to waive trial by jury in any suit, action, proceeding, claim or counterclaim brought by or on behalf of any party related to or arising out of the transactions described herein, this Commitment Letter or the Fee Letter or the performance of services hereunder.

 

 

Each of the Commitment Parties hereby notifies you that, pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) (the “PATRIOT Act”) and 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”), it and each of the Lenders is required to obtain, verify and record information that identifies the Borrower and each Guarantor (as defined in Exhibit B), which information includes names, addresses, tax identification numbers and other information that will allow such Commitment Party to identify the Borrower and each Guarantor in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the PATRIOT Act and the Beneficial Ownership Regulation and is effective for the Commitment Parties and each Lender.

 

Each of the parties hereto agrees that (i) this Commitment Letter is a binding and enforceable agreement (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law)) of the parties hereto with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Credit Documentation by the parties hereto in a manner consistent with this Commitment Letter (but our commitments hereunder are subject to the satisfaction (or waiver in writing by the Lead Arranger) of the conditions precedent as provided herein, including but not limited to execution of definitive Credit Documentation) and (ii) the Fee Letter is a binding and enforceable agreement (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law)) of the parties thereto with respect to the subject matter contained therein.

 

The commitment of TDNY (and any of its affiliates) to extend credit and any undertaking of TDTX as the Administrative Agent or of TDSL as the Lead Arranger to perform any services hereunder shall terminate upon the earliest to occur of: (i) the consummation of the Acquisition with or without the funding of any of the Credit Facilities, (ii) the termination of the Acquisition Agreement prior to closing of the Acquisition in accordance with its terms, (iii) the execution of a binding commitment to provide a “term loan b” facility in lieu of the Credit Facilities and (iv) 5:00 p.m. (New York time) on June 30, 2020, in each case unless the closing of the Credit Facilities has been consummated on or before such date on the terms and subject to the conditions contained herein.

 

Please confirm that the foregoing is in accordance with your understanding by signing and returning to us the enclosed copy of this Commitment Letter, together, if not previously executed and delivered, with the Fee Letter on or before 5:00 p.m. (New York time) on December 20, 2019, whereupon this Commitment Letter and the Fee Letter will become binding agreements between us. If the Commitment Letter and Fee Letter have not been signed and returned as described in the preceding sentence by such date, this offer will terminate on such date.

 

 

We are pleased to offer these Credit Facilities to you and are prepared to devote the necessary resources to this transaction to ensure an expeditious closing.

 

Very truly yours,

 

 

THE TORONTO-DOMINION BANK, NEW YORK BRANCH

 

 

	By		/s/ Jeff Paterson
			Name:    Jeff Paterson
			Title:      Managing Director

 

 

TORONTO DOMINION (TEXAS) LLC

 

 

	By		/s/ Jeff Paterson
			Name:   Jeff Paterson
			Title:     Managing Director

 

 

TD SECURITIES (USA) LLC

 

 

	By		/s/ Alper llgar
			Name:   K. Alper llgar
			Title:     Managing Director

 

 

Aceepted and agreed to this 19th day of December, 2019
ACT II GLOBAL ACQUISITION CORP.

 

By	/s/ Ira J. Lamel
	Name:   Ira J. Lamel
	Title:    Chief Financial Officer

 

 

EXHIBIT A

 

TRANSACTION SUMMARY¹

 

Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the Commitment Letter to which this Exhibit A is attached and in Exhibits B and C thereto.

 

ACT II GLOBAL ACQUISITION CORP., a Cayman Islands exempted company (the “SPAC” or the “Borrower”), intends to (i) acquire all of the direct or indirect issued and outstanding equity interests of MERISANT COMPANY, a Delaware corporation (“Merisant”), MERISANT LUXEMBOURG, Sarl, a Société à responsabilité limitée organized under the Laws of Luxembourg (“Merisant Luxembourg”), MAFCO WORLDWIDE LLC, a Delaware limited liability company (“Mafco Worldwide”), MAFCO SHANGHAI LLC, a Delaware limited liability company (“Mafco Shanghai”), EVD HOLDINGS LLC, a Delaware limited liability company (“EVD Holdings”), and MAFCO DEUTSCHLAND GmbH, a private limited company organized under the Laws of Germany (“Mafco Germany” and, collectively, the “Transferred Entities” and the Transferred Entities together with the direct and indirect subsidiaries of the Transferred Entities, excluding any entity dissolved or transferred pursuant to the terms of the Acquisition Agreement (as defined below) prior to the Closing Date, the “Targets”), from FLAVORS HOLDINGS INC., a Delaware corporation (“Flavors Holdings”), MW HOLDINGS I LLC, a Delaware limited liability company (“MW Holdings I”), MW HOLDINGS III LLC, a Delaware limited liability company (“MW Holdings III,” and together with MW Holdings I, the “MW Holdings Entities,” and MAFCO FOREIGN HOLDINGS, INC., a Delaware corporation (“Mafco Foreign Holdings” and collectively with the MW Holdings Entities and Flavors Holdings, the “Sellers”), pursuant to a Purchase Agreement, dated as of December 19, 2019, among the Sellers and the SPAC (together with all exhibits, schedules and disclosure letters thereto, the “Acquisition Agreement”) and (ii) acquire, for no additional consideration, all rights, title and interests in and to the assets and liabilities of Mafco Foreign Holdings listed in Section 2.1 of the Sellers Disclosure Schedule (as defined in the Purchase Agreement) (the transactions described in clauses (i) and (ii) collectively the “Acquisition”).

 

The SPAC was formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities (a “Business Combination”), and in connection therewith, the SPAC now seeks to consummate the Acquisition. The SPAC is required, by the terms of its documents of incorporation, after signing the Acquisition Agreement (which constitutes the definitive agreement for the Business Combination) to submit the Acquisition to its shareholders for approval (the “Proxy Process”) at a meeting called for such purpose and thereafter, any shareholder of the SPAC holding Class A ordinary shares, par value $0.0001 per share (“Class A ordinary shares”) that was not a founding shareholder, officer or director may elect to have their Class A ordinary shares redeemed, regardless of whether they vote for or against the Acquisition, for cash at a per share price equal to the aggregate amount then on deposit in the SPAC’s trust account (the “Trust Account”) calculated as of two business days prior to the consummation of the Acquisition, including interest but less income taxes payable divided by the number of then issued Class A ordinary shares.

 

¹ NTD: to be updated based on proposed acquisition structure and the possible addition of a US or Cayman-incorporated intermediate holdco immediately below the SPAC, which will hold all of the equity of the Acquired Business (directly or indirectly), as well as the possible addition of a US holding company directly beneath intermediate holdco.

 

 

 

In connection with the foregoing, it is intended that:

 

(a)       prior to, or concurrently with, the execution and delivery by the SPAC of the Commitment Letter, the SPAC has obtained commitments from (i) Act II Sponsor LLC, a Delaware limited liability company to not have its equity interests in the SPAC (such equity interests, the “Founder Share Value”) redeemed as part of the Acquisition and to vote its shares in favor of the Acquisition, and (ii) the Sellers to (subject to the satisfaction of the terms and conditions set forth in the Acquisition Agreement) receive, at Closing, the Purchase Price (as defined in the Acquisition Agreement), consisting of (A) the Cash Consideration (as defined in the Acquisition Agreement), (B) the Purchaser Ordinary Shares Consideration (as defined in the Acquisition Agreement) (the “Sellers Equity Rollover”), and (C) subject to the terms and conditions set forth in the Acquisition Agreement, the Escrowed Seller Shares (as defined in the Acquisition Agreement), plus the right to receive (subject to the terms and conditions set forth in the Acquisition Agreement), (x) the Tier 1 Consideration, and (y) the Tier 2 Consideration (each as defined in the Acquisition Agreement) (it being understood that, for the avoidance of doubt, the Sellers Equity Rollover will only be the Purchaser Ordinary Shares Consideration and the Escrowed Seller Shares (which shall be deemed issued and outstanding at Closing but which shall only be disbursed to the Sellers to the extent the conditions set forth in the Escrow Agreement (as defined in the Acquisition Agreement) are satisfied) received by the Sellers at Closing and will not include the Tier 1 Consideration, Tier 2 Consideration, each of which may only be or is received by the Sellers upon the satisfaction of certain conditions set forth in the Acquisition Agreement);

 

(b)       immediately prior to the Closing Date and after accounting for the Purchaser Shareholder Redemption Right and the Additional Equity Financing (each as defined in the Acquisition Agreement), the SPAC will have an aggregate amount of approximately $300.0 million, but in any event no less than $210.0 million, of cash (the “SPAC Equity Contribution”), which SPAC Equity Contribution, when combined with, without duplication, the Founder Share Value and the Sellers Equity Rollover, will on a pro forma basis constitute an aggregate amount (such equity amount, the “Minimum Equity Amount”) equal to at least 65.0% of the sum, without duplication, of (A) the aggregate gross proceeds of the Term Facility borrowed on the Closing Date plus (B) the SPAC Equity Contribution plus (C) the Sellers Equity Rollover (it being understood that, for the avoidance of doubt, (i) the SPAC Equity Contribution is in addition to the Sellers Equity Rollover and (ii) the SPAC Equity Contribution is the net cash proceeds initially received by the SPAC from its initial public equity offering and the Additional Equity Financing (after accounting for the Purchaser Shareholder Redemption Right) to fund the Acquisition and the Refinancing and to pay the Transaction Costs (as defined below));

 

(c)       the Borrower will obtain the Term Facility and the Revolving Credit Facility, in each case as further described in Exhibit B to the Commitment Letter; and

 

 

(d)       the proceeds of the Term Facility incurred on the Closing Date, together with the proceeds from the SPAC Equity Contribution, will be applied (i) to repay and refinance the existing indebtedness for borrowed money of the Targets and their subsidiaries other than (I) certain indebtedness that the Commitment Parties and the Borrower reasonably agree may remain outstanding after the Closing Date, (II) the Acquired Business’s indebtedness that is permitted to remain in effect under the terms of the Acquisition Agreement and (III) ordinary course capital leases, purchase money indebtedness and deferred purchase price obligations (the “Refinancing”), (ii) to pay the cash consideration for the Acquisition, and (iii) to pay certain fees and expenses incurred in connection with the Transactions (such fees and expenses, the “Transaction Costs”).

 

The transactions described above are collectively referred to herein as the “Transactions”. For purposes of this Commitment Letter and the Fee Letter, “Closing Date” shall mean the date of the satisfaction or waiver in writing by the Commitment Parties of the conditions set forth in Exhibit C to the Commitment Letter, the Acquisition is consummated and the initial funding of the relevant Credit Facilities occurs.

 

 

EXHIBIT B

 

$185,000,000 Senior Secured Term Loan Facility

$50,000,000 Senior Secured Revolving Facility

 

Summary of Terms and Conditions²

 

BORROWER:

Act II Global Acquisition Corp., a Cayman Islands exempted company (the “Borrower”). One or more subsidiaries of the Borrower to be agreed by the Administrative Agent and the Borrower may be added as “Co-Borrowers” with respect to the Credit Facilities.

 

GUARANTORS:	Each of the Borrower’s existing and subsequently acquired or formed direct and indirect wholly owned material domestic subsidiaries, with exceptions to be agreed upon (each, a “Guarantor” and collectively, the “Guarantors”; and together with the Borrower, the “Loan Parties”); for the purposes of this paragraph “material” shall mean any subsidiary that individually and in the aggregate contributes to revenue or total assets of the Borrower and its subsidiaries in a percentage to be agreed.3
	All obligations of the Borrower under the Credit Facilities and under any interest rate protection or other hedging arrangements entered into with the Administrative Agent, the Lead Arranger, an entity that is a Lender or agent under the Facilities at the time of such transaction (or on the Closing Date, if applicable), or any affiliate of any of the foregoing (“Hedging Arrangements”), or any cash management arrangements with any such person (“Cash Management Arrangements”) will be unconditionally guaranteed (the “Guarantees”) by the Loan Parties; provided, that in the case of any obligations under any Hedging Arrangement that constitutes a “swap” within the meaning of section 1(a)(947) of the Commodity Exchange Act, any subsidiary of SPAC that is not an “Eligible Contract Participant” as defined under the Commodity Exchange Act shall not guarantee such obligations.

 

² All capitalized terms used but not defined herein shall have the meaning assigned thereto in the Commitment Letter to which this Term Sheet is attached.

 

³ NTD: subject to possible addition of a US or Cayman-incorporated intermediate holdco immediately below the SPAC, which will hold all of the equity of the Acquired Business (either directly or indirectly), as well as the possible addition of a US holding company directly beneath intermediate holdco.

 

 

ADMINISTRATIVE AGENT:

Toronto Dominion (Texas) LLC (“TDTX” and, in such capacity, the “Administrative Agent”).

 

LEAD ARRANGER AND SOLE BOOKRUNNER:

TD Securities (USA) LLC (the “Lead Arranger”).

 

LENDERS:

A syndicate of financial institutions and other lenders, including TD or an affiliate thereof (each, a “Lender” and, collectively, the “Lenders”), selected by Lead Arranger and reasonably acceptable to the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and, in each case, excluding any Disqualified Institutions.

 

CREDIT FACILITIES:

$235,000,000 in senior secured credit facilities (the “Credit Facilities”) consisting of the following:

 

	Term Loan: A senior secured term loan facility in an aggregate principal amount of up to of $185,000,000 (the “Term Facility” and the loan under the Term Facility, the “Term Loan”) will be advanced in one drawing on the Closing Date (as defined below) and have a term of five years. Amounts repaid or prepaid on the Term Loan may not be reborrowed.
	Revolving Credit Facility: A revolving credit facility of up to $50,000,000 (the “Revolving Credit Facility”) under which borrowings may be made from time to time during the period from the Closing Date until the fifth anniversary of the Closing Date, subject to the Conditions Precedent to each Subsequent Extension of Credit under the Credit Facilities set forth below.

CLOSING DATE:

The date on which the borrowings under the Credit Facilities are made and the Acquisition is consummated (the “Closing Date”).

 

AMORTIZATION:

Revolving Credit Facility. No amortization. Due and payable on the fifth anniversary of the Closing Date.

 

Term Loan. Payable in quarterly installments as set forth below with balance due and payable on the fifth anniversary of the Closing Date:

 

Year				Annual Installments
	1				2.5	%
	2				2.5	%
	3				5.0	%
	4				10.0	%
	5				10.0	%

 

 

INCREMENTAL FACILITY:

Borrower shall have the right, at any time subsequent to the Closing Date and prior to the fifth anniversary of the Closing Date, to increase the size of the Term Loan and/or add one or more incremental term loan facilities to the Credit Facilities (each, whether or not a separate tranche, an “Incremental Term Loan”; each Incremental Term Loan is sometimes referred to herein individually as an “Incremental Facility”), in an aggregate principal amount of up to (x) (i) $50,000,000, plus (ii) the aggregate principal amount of Term Loans that were voluntarily prepaid prior to such date, plus (y) an unlimited amount so long as in the case of this clause (y) after giving effect to such increase, the Consolidated Total Net Leverage Ratio (as defined below) is equal to or less than 2.00:1.00 (calculated on a pro forma basis for the use of proceeds thereof, but without “netting” any proceeds thereof); provided that:

 

(a)

the existing Lenders may, but not shall not be obligated to, commit to all or a portion of the proposed Incremental Facility, and if necessary to obtain the requested Incremental Facility commitments from a third party financial institution, such financial institution shall be reasonably satisfactory to the Administrative Agent;

 

(b)

immediately after giving pro forma effect to such Incremental Facility and the use of proceeds thereof (1) each of the conditions precedent to each subsequent extension of credit after the Closing Date set forth in the Credit Documentation shall have been satisfied, except, in the case of an Incremental Facility incurred to finance a Limited Condition Acquisition (to be defined in a manner to be mutually agreed), such requirement shall be subject to customary “Certain Funds Provisions” and (2) in connection with any Incremental Facility incurred pursuant to clause (x)(i) above, after giving effect to such Incremental Facility, the Borrower shall be in pro forma compliance with the Financial Performance Covenant (calculated on a pro forma basis without “netting” any proceeds thereof); provided, that notwithstanding the foregoing, to the extent set forth in any applicable “Certain Funds Provisions”, at the option of the Borrower the conditions in preceding clauses (1) and (2) shall be determined as of the date that the applicable acquisition agreement is executed and as of the incurrence of such Incremental Facility both before and immediately after giving effect thereto, no payment or bankruptcy event of default has occurred and is continuing or would result from such Incremental Facility;

 

 

(c)

the final maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier (but may be longer) than the maturity date of the initial Term Loan and the weighted average life to maturity of any such Incremental Term Loan shall not be shorter (but may be longer) than the remaining weighted average life to maturity of the initial Term Loan (calculated without giving effect to any prepayments);

 

(d)

the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the maturity of the Incremental Term Loan), but excluding arrangement, underwriting, structuring, commitment, amendment or similar fees (regardless of whether paid in whole or in part to any or all lenders)) applicable to any Incremental Term Loan will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the initial Term Loan, unless the interest rate margin with respect to the initial Term Loan is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Term Loan Facility and the all-in yield on the initial Term Loan, minus, 0.50%; it being agreed that to the extent the all-in yield with respect to such Incremental Facility is greater than such all-in yield with respect to any existing facility solely as a result of a higher interest rate floor, then the interest rate margin increase shall be effectuated solely by increasing the interest rate floor on the initial Term Loan, as applicable; and

 

(e)

except as set forth above with respect to maturity, amortization and all-in yield, any Incremental Facility shall be on the same terms and conditions as the Term Facility or shall be on terms not more restrictive to the Borrower and its subsidiaries than the terms of the initial Term Facility.

 

 

LETTERS OF CREDIT:

A sub-facility of a TBD (but in any event not less than $5.0 million) amount of the Revolving Credit Facility will be available for the issuance of letters of credit (“Letters of Credit”) for the account of Borrower and the Guarantors. Any such Letters of Credit shall reduce availability under the Revolving Credit Facility on a dollar-for-dollar basis. Letters of Credit may be issued on and after the Closing Date in the ordinary course of business.

 

SWING LINE LOANS:

At the option of the Lender providing such swing line loans (the “Swingline Lender”), a portion of the Revolving Credit Facility to be agreed upon may be made available as swing line loans.

 

USE OF PROCEEDS:

The proceeds of the Term Loan on the Closing Date, together with the SPAC Equity Contribution, will be used to fund the Transactions and the Transaction Costs. The proceeds of the Revolving Credit Facility may be used after the Closing Date for working capital and general corporate purposes (including for capital expenditures); provided that the Revolving Credit Facility may be used on the Closing Date (i) in an amount not to exceed $5.0 million (as such amount may be increased pursuant to the Fee Letter), for general corporate purposes and working capital needs, including to pay a portion of the Transaction consideration and fees and expenses in connection with the Transaction, and (ii) to backstop, replace or cash collateralize existing letters of credit.

 

PREPAYMENTS AND COMMITMENT REDUCTIONS:

Borrower shall make the following mandatory prepayments:

 

(a)

Excess Cash Flow. Beginning with the fiscal year ended December 31, 2021, annual prepayments in an amount equal to 50% of Excess Cash Flow (to be defined in the Credit Documentation), with reductions to 25% and 0% at Consolidated Total Net Leverage Ratios to be agreed.

 

(b)

Debt Issuances. Prepayments in an amount equal to 100% of the net cash proceeds of issuances or incurrences of debt obligations of the Borrower and its subsidiaries (other than debt incurrences permitted by the Credit Documentation (except for permitted refinancing debt in respect of the Credit Facilities)).

 

 

 

(c)

Asset Sales. Prepayments in an amount equal to 100% of the net cash proceeds in excess of an amount to be agreed of the sale or other disposition of any property or assets (other than sales of assets consisting of inventory in the ordinary course of business, sales of worn-out or obsolete assets and other exceptions to be mutually agreed) of the Borrower or the Guarantors (including casualty insurance and condemnation proceeds), and subject to the right of the Borrower and its subsidiaries, absent an event of default then continuing, to reinvest in assets used or useful in the business of the Borrower and its subsidiaries if such proceeds are reinvested (or committed to be reinvested) within 12 months (and if so committed to reinvestment, reinvested within 180 days after such 12-month period).

 

(d)

Mandatory prepayments will be applied to the outstanding Loans: first, to the next four (4) remaining installments of the Term Loan in direct order of maturity, next to the remaining installments of the Term Loan on a pro rata basis, next to the outstanding principal balance of the Revolving Credit Facility, which shall not effect a permanent reduction to the Revolving Credit Facility, and next to cash collateralize Letters of Credit (if any). Mandatory prepayments shall be accompanied by any breakage costs in connection with any prepayments of LIBOR Loans.

 

Voluntary prepayments of the Loans and voluntary reductions of the unutilized portion of the commitments under the Revolving Credit Facility will be permitted at any time provided that Borrower’s voluntary prepayments are accompanied by any breakage costs in connection with any voluntary prepayments of LIBOR Loans. Voluntary prepayments shall be applied as directed by Borrower (or in absence of direction, in the direct order of maturity).

 

 

DOCUMENTATION:

The definitive financing documentation for the Credit Facilities (the “Credit Documentation”), shall contain the terms and conditions set forth herein and such other terms as the Borrower and the Lead Arranger shall agree; it being understood and agreed that the Credit Documentation shall: (a) not be subject to any conditions to the availability and initial funding of the Credit Facilities on the Closing Date other than as set forth on Exhibit C; (b) subject to the right to exercise the “Flex Provisions” in the Fee Letter, contain only those mandatory prepayments, representations and warranties, affirmative, financial and negative covenants and events of default expressly set forth in this Summary of Terms and Conditions (the “Term Sheet”) and with standards, qualifications, thresholds, exceptions for materiality or otherwise and “baskets,” grace and cure periods, in each case, to be agreed; (c) give due regard to (i) the operational and strategic requirements of the Borrower and its respective subsidiaries in light of their consolidated capital structure, size, industry and practices (including, without limitation, the leverage profile and projected free cash flow generation of the Borrower and its respective subsidiaries), in each case, after giving effect to the Transactions, (ii) the Projections; (d) include the Administrative Agent’s customary agency provisions, Delaware LLC Act provisions, QFC stay rules provisions, ERISA lender representations and “beneficial ownership” provisions; and (e) be negotiated in good faith by the Borrower and the Lead Arranger to finalize such Credit Documentation, giving effect to the Certain Funds Provisions, as promptly as practicable.

 

COLLATERAL:

Subject to the Certain Funds Provisions, all obligations of the Borrower under the Credit Facilities and of the Guarantors under the guarantees (including any Hedging Arrangements and Cash Management Arrangements), will be secured by:

 

(a)         a first priority perfected lien on and security interest (subject to permitted liens and exceptions to be negotiated) in substantially all present and future, tangible and intangible assets of the Borrower and the Guarantors (including (i) using commercially reasonable efforts to obtain landlord waivers for the Borrower’s headquarters and other key operating facilities to be agreed and (ii) a first priority security interest in deposit accounts (other than zero balance, payroll and withholding accounts and accounts containing less than a to be determined amount), material contracts and intercompany debt); and

 

 

(b)         a first priority perfected lien on and security interest in all ownership interests of the Borrower’s and Guarantors’ present and future subsidiaries, including each Guarantor4.

 

CONDITIONS PRECEDENT TO CLOSING

Subject to the Certain Funds Provisions, the initial borrowing under the Credit Facilities will be subject solely to the applicable conditions set forth in Exhibit C.

 

CONDITIONS PRECEDENT TO EACH ADVANCE AFTER CLOSING:

Subject to any limitations set forth herein with respect to Limited Condition Acquisitions: (i) the absence of any default or Event of Default, (ii) continued accuracy in all material respects (or in all respects to the extent already qualified by materiality) of representations and warranties and (iii) delivery of a customary borrowing notice.

 

REPRESENTATIONS AND WARRANTIES:

Subject to the Certain Funds Provisions, the representations and warranties included in the Credit Documentation will be limited to the following (in each case (x) after giving effect to the Transactions, (y) subject to customary exceptions and qualifications to be negotiated in the Credit Documentation and (z) be applicable to the Borrower and its subsidiaries):

 

Organizational status and good standing; subsidiaries, capitalization; power, authority, and qualification; authorization, execution, delivery and enforceability of loan documents; use of proceeds; margin regulations; financial statements and reports; no material adverse change; accurate and complete disclosure; customary representations relating to pro forma financial statements and projections; intellectual property; certain regulatory matters; governmental authority and licensing; title to properties and assets; no litigation; taxes; governmental and third party approvals; transactions with affiliates; Investment Company Act; ERISA and other pension matters; compliance with laws (including environmental and related laws); no violation of, or conflict with, law or organizational documents or material agreements and no imposition of liens (other than permitted liens); accuracy of beneficial ownership certifications; no broker’s fees (except as previously disclosed); absence of default or event of default under material contracts; creation, validity, priority and perfection of security interests; compliance with OFAC, anti-corruption, including FCPA, anti-money laundering, anti-bribery, PATRIOT Act and sanctioned persons and countries; solvency of the Borrower and its subsidiaries on a consolidated basis as of the Closing Date after giving effect to the Transactions; status of the Credit Facilities as senior debt; insurance consistent with that maintained by similarly situated entities; and undisclosed liabilities in required annual financial statements.

 

⁴ NTD: subject to possible addition of a US or Cayman-incorporated intermediate holdco immediately below the SPAC, which will hold all of the equity of the Acquired Business (either directly or indirectly), as well as the possible addition of a US holding company directly beneath intermediate holdco.

 

 

AFFIRMATIVE COVENANTS:

The affirmative covenants included in the Credit Documentation will be limited to the following (subject to customary exceptions and thresholds to be negotiated in the Credit Documentation and to be applicable to the Borrower and its subsidiaries):

 

Preservation of corporate existence, licenses and intellectual property, maintenance of property, insurance, data security, payment of taxes and claims and similar obligations, compliance with laws, inspection of property and books and records (subject to limitations on frequency and cost reimbursement), use of proceeds, quarterly lender calls, real estate, further assurances regarding provision of additional collateral and guaranties consistent with the paragraph above entitled “Collateral”, environmental matters, hazardous materials and compliance with laws and regulations (including ERISA, FDA, OFAC, environmental, other regulatory matters, PATRIOT Act and other anti-terrorism laws, anti-bribery, anti-corruption laws (including FCPA) and anti-money laundering and sanctions laws).

 

REPORTING REQUIREMENTS:

The financial and other reporting requirements applicable to the Borrower and included in the Credit Documentation will be limited to the following (in each case subject to customary exceptions and thresholds to be negotiated in the Credit Documentation):

 

Delivery of annual audited consolidated financial statements (in the case of such annual audited consolidated financial statements, without qualifications as to “going concern” or scope of audit) within 90 days after the fiscal year end (beginning with the fiscal year ending December 31, 2019), in each case, for the SPAC and its subsidiaries on a consolidated basis; annual budget (prepared on a quarterly basis), within 60 days after the end of each fiscal year commencing with the fiscal year ending December 31, 2020, for the immediately succeeding fiscal year; quarterly unaudited consolidated financial statements for the first three quarters of each fiscal year within 45 days after the fiscal quarter end, in each case, for the SPAC and its subsidiaries on a consolidated basis; management discussion and analysis reports together with the delivery of the above referenced annual and quarterly financial statements; officer’s certificates, including quarterly compliance certificates (commencing with the first full fiscal quarter ending after the Closing Date) together with the delivery of the above referenced annual and quarterly financial statements; KYC information; provision of information required under the Beneficial Ownership Regulation; updated collateral information; customary notifications regarding notice of any default, and matters related litigation, ERISA, environmental or other events that could reasonably be expected to result in a material adverse effect, copies of affiliate agreements material to the interests of the Lenders (and any amendments or modifications thereto) and other customary notices, and, other information reasonably requested by Administrative Agent.

 

 

FINANCIAL PERFORMANCE COVENANT:

The only financial performance covenant (the “Financial Performance Covenant”) included in the Credit Documentation shall be:

 

Consolidated Total Net Leverage Ratio (as defined below) not more than 4.00:1.00, with a stepdown to 3.75:1.00 on the last day of the fourth full fiscal quarter ending after the Closing Date.

 

“Consolidated Total Net Leverage Ratio” means, with respect to any Person as of any date, the ratio of (a) outstanding consolidated total debt net of up to an aggregate amount of $25.0 million of unrestricted cash and cash equivalents (held in a pledged account subject to the Administrative Agent’s control) of such Person or one of the Loan Parties as of such date to (b) the Consolidated EBITDA for such Person for the four (4) consecutive fiscal quarters then last ended for which financial statements have been delivered, such ratio to be calculated on a pro forma basis.

 

“Consolidated EBITDA” means, with respect to the Borrower and its subsidiaries on a consolidated basis, the sum of (a) net income (excluding any extraordinary gains and losses), plus (b) to the extent deducted in determining net income, the sum of (i) depreciation and amortization, (ii) federal, state and local income and franchise taxes, (iii) interest expense and (iv) other addbacks and deductions to be mutually agreed, including extraordinary items, expenses in connection with the Transactions, non-cash items, one-time charges, synergies and costs savings (with synergies and cost savings collectively capped at 20% of Consolidated EBITDA and with a 12 month look-forward).

 

 

The Financial Performance Covenant shall be tested quarterly (and on each advance date, calculated in accordance with the definition of “Consolidated Total Net Leverage Ratio”, but determined based on outstanding net consolidated total debt after giving pro forma effect to such advance (but without netting the proceeds thereof)) starting with the last day of the first full fiscal quarter ending after the Closing Date.

 

For purposes of determining the Consolidated Total Net Leverage Ratio: if the Borrower or any of its subsidiaries makes an Acquisition during a fiscal period, “Consolidated EBITDA” shall be determined (other than for purposes of calculating Excess Cash Flow) as if the acquisition (and any related incurrence or repayment of indebtedness) had occurred on the first day of that fiscal period, and the operating results of any acquired person for any affected fiscal periods shall be determined by reference to financial information prepared by the prior owners thereof (or by the Borrower and its subsidiaries, after any such acquisition), subject to adjustments reasonably satisfactory to the Administrative Agent.

 

NEGATIVE COVENANTS:

The negative covenants included in the Credit Documentation will be limited to the following (in each case subject to customary exceptions and baskets to be negotiated in the Credit Documentation and to be applicable to the Borrower and its subsidiaries):

 

Limitations with respect to other indebtedness (including capital leases and speculative hedging transactions) and guaranties; certain equity issuances; liens; burdensome agreements and negative pledges, investments and acquisitions; loans and advances; mergers, consolidations, dissolutions and other fundamental changes; sales of assets, including sales of subsidiaries and sale-leasebacks; dividends, stock repurchases, and restricted payments; transactions with affiliates; conduct of business; permitted activities of the SPAC and of any intermediate holdco entity; certain regulatory matters; amendments and waivers of organizational documents; payment, repurchases, acquisitions or redemptions of junior lien, unsecured or subordinated indebtedness (collectively, “Junior Debt”) and adverse amendments to documents governing such indebtedness and other material agreements; changes to fiscal year and prohibition against “plan assets”.

 

 

The Credit Documentation will include exceptions for:

 

(a) With respect to restricted payments:

 

(i) a basket for restricted payments in an unlimited amount subject to no default or event of default occurring and continuing (or resulting therefrom) and pro forma compliance with a Consolidated Total Net Leverage Ratio of not more than 2.00:1.00; and

 

(ii) so long as no default or event of default is occurring and continuing (or resulting therefrom), a general restricted payment basket not to exceed $20.0 million annually, plus (x) 50% of Consolidated Net Income (to be defined in a manner to be mutually agreed) for the period (taken as one accounting period) from the first full fiscal quarter ending after the Closing Date to the end of the most recently ended fiscal quarter for which financial statements have been delivered and (y) qualified capital contributions to the Borrower after the Closing Date in cash (other than amounts not otherwise applied).

 

(b) with respect to investments:

 

(i) acquisitions of all or substantially all of the assets of any person or any line of business or division thereof, or at least a majority of the equity interests of any person (each, a “Permitted Acquisition”), so long as, among other customary conditions to be mutually agreed (and subject to Certain Funds Provisions in respect of Limited Condition Acquisitions), (A) no default or event of default is occurring and continuing (or resulting therefrom), (B) the nature of business covenant is satisfied, (C) the Borrower complies with the collateral and guarantee requirements in the Credit Documentation, (D) the acquired entity becomes a Guarantor and the acquired assets become Collateral, and (E) after giving pro forma effect to such acquisition and the incurrence of indebtedness in connection therewith, the Borrower shall be in pro forma compliance with the Financial Performance Covenant; and

 

(ii) so long as no default or event of default then exists or would rest therefrom, a general investment basket not to exceed the greater of (A) $20.0 million and (B) 25% of Consolidated EBITDA.

 

 

EVENTS OF DEFAULT:

The Credit Documentation will contain events of default, limited to the following (with customary grace and cure periods and thresholds to be negotiated in the Credit Documentation and to be applicable to the Borrower and its subsidiaries):

 

non-payment of principal, interest or other amounts; inaccuracy of representations and warranties; violation of covenants; impairment of collateral; cross-default to any other indebtedness; unsatisfied or unstayed judgments; bankruptcy and insolvency; actual or asserted unenforceability, invalidity or termination of any guarantee, security document, or other loan document; ERISA; certain regulatory defaults; and change of control (definition to be agreed, but which will provide that the controlling shareholder of the Sellers and the principal founding shareholders of the SPAC will constitute “permitted holders”).

 

VOTING:

Amendments, waivers and other modifications to the Credit Documentation shall require the consent of (i) a minimum of two Lenders, if there are three (3) Lenders or less, and (ii) if there are more than three (3) Lenders, greater than 50% of the total commitments and/or loans outstanding (such Lenders, the “Required Lenders”); provided that so long as there are two or more Lenders that are not affiliates, Required Lenders shall consist of Lenders that satisfy the foregoing requirement and consist of at least two Lenders that are not affiliates); each Lender directly affected thereby are required to approve (a) increases in or extensions of such Lender’s commitment, (b) reductions of principal, interest or fees (excluding waiver of default interest and mandatory prepayments and any amendments to financial covenants or definitions), (c) extensions of final maturity payments or any date on which amortization payments are due or reductions in scheduled amortization, (d) releases of all or substantially all of the collateral or guarantors, (e) modifications to the pro rata payment provisions, (f) any change to voting thresholds, and (g) alter, as among Lenders, the waterfall provisions; provided, that, greater than 50% of revolving Lenders required to waive any condition in connection with funding of revolving advances. No defaulting lender shall have the right to vote, except for increases or extensions of its commitments, reduction or forgiveness of principal on its loans or reduction in the interest rate applicable to the obligations owed to it.

 

 

The Credit Documentation shall contain customary provisions for replacing (a) defaulting Lenders and (b) non-consenting Lenders in connection with amendments and waivers requiring the consent of all Lender or all Lenders directly affected thereby so long as Lenders holding in excess of 50% of the aggregate amount of the loans and commitments under the Credit Facilities consented thereto.

 

MISCELLANEOUS:

The Credit Documentation will include (a) standard yield protection provisions (including, without limitation, provisions relating to compliance with risk-based capital guidelines, increased costs, withholding taxes, illegality and LIBOR breakage costs) and LIBOR replacement provisions, (b) a mutual waiver of consequential and punitive damages and right to a jury trial, (c) customary agency, set-off and sharing language, (d) customary “defaulting lender” provisions and (e) customary yank-a-bank and lender replacement provisions.

 

ASSIGNMENTS AND PARTICIPATIONS:

Each Lender may sell, transfer, negotiate or assign to one or more other lenders all or a portion of its commitments, loans and its rights and obligations under any Credit Documentation; provided that no Lender may assign its commitment to a Defaulting Lender (to be defined) or a Disqualified Institution. Consent of the Borrower and the Administrative Agent is required, which shall not be unreasonably withheld or delayed; provided that no consent of the Borrower shall be required for an assignment to Lenders (or to affiliates or approved funds of Lenders) or during the continuation of a payment or bankruptcy Event of Default. To the extent the consent of the Borrower is required for an assignment, if the Borrower does not provide such consent or non-consent within ten (10) business days of receiving written notice of such proposed assignment, then the Borrower shall be deemed to have consented to such assignment. No such assignment shall be in an aggregate amount less than $1,000,000 (or such lesser amount as shall constitute the aggregate amount of the commitments and loans of the assigning Lender). Consent of the issuing bank and Swingline Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment of commitments under the Revolving Credit Facility or any other assignment that increases the obligation of the assignee to participate in exposure under any Letters of Credit or swing line loans, as applicable (whether or not then outstanding). An administrative fee of $3,500 shall be payable by the assignor to the Administrative Agent as a condition to the effectiveness of any such assignment. The Credit Documentation will contain customary provisions to permit the Borrower to have the right, at its option, to repurchase the term loans on terms and conditions (including buyback mechanics) to be reasonably agreed by Administrative Agent and Borrower, including (i) all such offers shall be made to all term Lenders on a pro rata basis, (ii) no default or event of default shall have occurred or be continuing, (iii) all such term loans so acquired shall be immediately cancelled, (iv) no portion of the Revolving Credit Facility shall be drawn to make such repurchase, and (v) Borrower shall represent that it has no material non-public information regarding itself that has not been disclosed to each selling Lender. Such repurchases must be offered to all Lenders on a pro rata basis, but may be completed on a non-pro rata basis among the Lenders.

 

 

INDEMNITY:

The Credit Facilities will provide customary and appropriate provisions relating to indemnity, expense reimbursement and related matters in a form reasonably satisfactory to the Administrative Agent and the Lenders.

 

GOVERNING LAW:

New York governing law and consent to exclusive New York jurisdiction except to the extent that the Administrative Agent requires submission to any other jurisdiction in connection with the exercise of any right under any security document or the enforcement of any judgment.

 

COUNSEL TO LEAD ARRANGER:

Jones Day.

 

 

ADDENDUM I

 

PRICING AND FEES

 

Capitalized terms not otherwise defined herein have the meaning set forth in the Summary of

Terms and Conditions to which this Addendum is attached.

 

INTEREST RATES:

The “Applicable Margin” means, with respect to the Credit Facilities, (a) until the delivery of a compliance certificate for the first full fiscal quarter following the Closing Date, 1.75%, in the case of Base Rate loans, and 2.75% in the case of LIBOR loans, and (b) thereafter, the applicable percentages per annum set forth below, based upon the Consolidated Total Net Leverage Ratio:

 

				Consolidated
Pricing				Total Net		Base Rate				LIBOR
Level				Leverage Ratio		Loans				Loans
	1			≤ 1.50			1.25	%			2.25	%
	2			>1.50 but ≤ 2.25			1.50	%			2.50	%
	3			>2.25 but ≤ 3.00			1.75	%			2.75	%
	4			>3.00			2.00	%			3.00	%

 

Any increase or decrease in the Applicable Margin resulting from a change in the Consolidated Total Net Leverage Ratio shall become effective as of the first business day immediately following the date a compliance certificate is delivered pursuant to the paragraph “Reporting Requirements” in the Term Sheet; provided that if a compliance certificate is not delivered within three (3) business days of the date on which such compliance certificate is required to be delivered in accordance with such paragraph, then upon the request of the Required Lenders, Pricing Level 4 shall apply as of the first business day after the date on which such compliance certificate was required to have been delivered and shall remain in effect until the date on which such compliance certificate is delivered.

 

The Base Rate will be a floating rate defined as the highest of (a) the rate that Administrative Agent announces from time to time in its sole discretion as its prime commercial lending rate for such day for United States Dollar loans made in the United States, (b) the Federal Funds Rate plus 50 basis points, (c) LIBOR for an interest period of one-month beginning on such day plus 1% and (d) 1.00%. The Base Rate is not necessarily the lowest rate of interest charged by Administrative Agent in connection with extensions of credit.

 

 

LIBOR will be defined as the offered rate per annum for deposits of Dollars for the applicable interest period that appears on Reuters Screen LIBOR01 Page (or such other page as may replace that page in that service) as of 11:00 A.M. (London, England time) two (2) business days prior to the first day in each interest period. If no such offered rate exists, or another comparable publicly available offered rate shall cease to be available, such rate will be the rate of interest per annum, as determined by Administrative Agent (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits of Dollars in immediately available funds are offered by Administrative Agent’s London branch at 11:00 A.M. (London, England time) two (2) business days prior to the first day in the applicable interest period to major banks in the offshore U.S. Dollar market for the applicable interest period and for an amount equal or comparable to the principal amount of Loans to be borrowed, converted or continued as LIBOR loans on such date of determination. LIBOR shall be adjusted for statutory reserve requirements (if any). In no event shall LIBOR be less than zero. The Credit Documentation will include the Administrative Agent’s customary LIBOR replacement provisions.

 

Interest on Base Rate loans will be payable quarterly in arrears. Interest on LIBOR loans will be payable at the end of each interest period and, for interest periods greater than 3 months, every 3 months. All interest will be calculated using a 360 day year and actual days elapsed (or, in the case of Base Rate loans calculated by reference to the prime rate, a 365/6 day year and actual days elapsed).

 

Automatically upon the occurrence and during the continuance of a bankruptcy or payment event of default or at the election of the Required Lenders (as defined above) upon the occurrence and during the continuance of one or more other events of default, the loans shall bear interest at a default rate of interest equal to an additional 2% per annum over the rate otherwise applicable and such interest will be payable on demand.

 

FEES:

An Unused Commitment Fee in an amount equal to (a) until the delivery of a compliance certificate for the first full fiscal quarter following the Closing Date, 0.40% per annum and (b) thereafter, the applicable percentages set forth below based upon the Consolidated Total Net Leverage Ratio on the average unused daily balance of the Revolving Credit Facility (less any outstanding letters of credit but not any swing line loans for purposes of this calculation), such fee to be payable in arrears at the end of each quarter and upon the termination of the Revolving Credit Facility:

 

Pricing Level				Consolidated Total Net Leverage Ratio		Unused Commitment Fee
	1			≤ 1.50			0.30	%
	2			>1.50 but ≤ 2.25			0.35	%
	3			>2.25 but ≤ 3.00			0.35	%
	4			>3.00			0.40	%

 

Letter of Credit fees for outstanding Letters of Credit shall be a per annum fee equal to the then effective Applicable Margin for the loans under the Revolving Credit Facility maintained as LIBOR loans. In addition, the Borrower shall pay to the issuing bank, for its own account, (a) a fronting fee equal to 0.25% per annum of the undrawn face amount of each outstanding Letter of Credit, payable in arrears at the end of each quarter and upon the termination of the Revolving Credit Facility and (b) customary issuance and administration fees.

 

 

EXHIBIT C

 

Summary of Conditions Precedent to the Credit Facilities

 

Capitalized terms used but not defined in this Exhibit C shall have the meanings set forth in the Commitment Letter to which this Exhibit C is attached and in Exhibits A and B thereto. Subject to the Certain Funds Provision, the availability and initial funding of the Credit Facilities on the Closing Date shall be subject solely to the satisfaction (or waiver) of the following conditions.

 

A.	CONDITIONS PRECEDENT TO THE FACILITIES

 

1.

Concurrent Transactions: Substantially concurrently with the initial fundings contemplated by the Commitment Letter, (a) the SPAC shall have received the SPAC Equity Contribution in the aggregate amount of at least $210.0 million, which when combined with, without duplication, the Founder Share Value and the Sellers Equity Rollover shall constitute the Minimum Equity Amount, (b) the Seller Equity Rollover shall have occurred and (c) the Refinancing shall have occurred (with all applicable related liens and guarantees to be released and terminated or customary provisions therefor made). The Acquisition shall have been consummated pursuant to the Acquisition Agreement without any alteration, amendment or other change, supplement or waiver thereto, or any consent having been given, in the case of any of the foregoing in a manner which would be materially adverse to the Lenders (in their capacities as such) or the Lead Arranger, unless consented to in writing by the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned; provided that (a) any decrease of less than 10% in such purchase price shall not be deemed to be materially adverse to the interests of the Lenders so long as such decrease is allocated, first, to reduce the SPAC Equity Contribution to an amount not less than the greater of (x) the Minimum Equity Amount and (y) $210.0 million and, thereafter, as a reduction to the Term Facility, (b) any increase in the purchase price shall not be materially adverse to the interests of the Lenders so long as such increase is funded by an increase in the SPAC Equity Contribution or other cash equity proceeds; and (c) any modifications to the second sentence of Section 10.7 of the Acquisition Agreement or (to the extent that the Acquisition Agreement provides that a modification, waiver or termination thereof would require the approval in writing of the Lead Arrangers) any provision or definition referenced therein, or the definition of “Material Adverse Effect” in, the Acquisition Agreement shall be deemed to be materially adverse to the interests of the Lead Arranger. The Lead Arranger shall have been provided with a copy of each alteration, amendment or other change, supplement or waiver to the Acquisition Agreement, or any consent with respect thereto, that could reasonably be expected to impact the interests of the Lenders (in their capacities as such) or the Lead Arranger. The Specified Acquisition Representations shall be true and correct, and the Specified Representations shall be true and correct in all material respects (or in all respects to the extent already qualified by materiality).

 

2.

Material Adverse Effect. Since September 30, 2019, except as set forth on Section 3.10 of the Sellers Disclosure Schedule (as defined in the Acquisition Agreement) or as expressly contemplated in the Acquisition Agreement, there shall have been no Material Adverse Effect as defined in the Acquisition Agreement as in effect on the date hereof.

 

3.

Financial Statements. The Lead Arranger shall have received (i) a customary pro forma balance sheet and pro forma income statements for the SPAC and its subsidiaries as of the last day and for the period of four consecutive fiscal quarters ending at least 45 days prior to the Closing Date; (ii) if the Closing Date occurs on or after March 31, 2020, audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the SPAC for its fiscal year ending December 31, 2019, (iii) an unaudited balance sheet and related statements of operations and cash flows of the SPAC for each fiscal quarter subsequent to December 31, 2018, and ended at least 45 days prior to the Closing Date and (iv) an unaudited balance sheet and related statements of operations and cash flows of the Sweetener Business of Flavors Holdings Inc. and the Licorice Business of Flavors Holdings Inc. for each fiscal quarter ended on or after March 31, 2020, but solely to the extent such fiscal quarter has ended at least 45 days prior to the Closing Date.

 

 

4.

Performance of Obligations. All costs, fees, expenses and other compensation required to be paid to the Lead Arranger, the Administrative Agent or the Lenders pursuant to the commitment letter to be entered into among the Borrower, the Administrative Agent and/or the Lead Arranger and the Fee Letter shall have been paid to the extent due and invoiced at least three (or such shorter period as agreed between the Borrower and the Lead Arranger) business days prior to the Closing Date.

 

5.

Collateral and Guarantees. Subject to the Certain Funds Provision, (i) all required guarantees shall have been executed and delivered and be in full force and effect, and (ii) to the extent required by the Lead Arranger, all documents and instruments required to create and perfect the security interest of the Administrative Agent in the Collateral with the required priority for the applicable Facility shall have been executed and delivered and, if applicable, be in proper form for filing, and none of the Collateral shall be subject to any other pledges, security interest or mortgages, except for liens (a) permitted under the Credit Documentation or (b) securing indebtedness to be refinanced in full and to be released concurrently with the initial funding of the Credit Facilities on terms satisfactory to the Lead Arranger.

 

6.

Customary Closing Documents. The Credit Documentation shall have been executed and delivered by the Borrower and the Guarantors. The Borrower shall have complied with the following customary closing conditions: (i) the delivery of customary legal opinions, lien searches, customary closing certificates, customary secretary’s certificates and incumbency certificates, customary good standing certificates, customary borrowing notices and organizational documents; and commercially reasonable efforts to provide customary evidence of insurance; (ii) the delivery of evidence reasonably satisfactory to the Lead Arranger that all guarantees of the Existing Credit Agreements (as defined in the Acquisition Agreement) by the Acquired Business have been terminated or will be terminated substantially concurrently with the initial funding contemplated by the Commitment Letter and all liens relating to the properties, equity and assets of the Acquired Business pursuant to the Existing Credit Agreements have been released or will be released substantially concurrently with the initial funding contemplated by the Commitment Letter, (iii) all other debt of the Borrower and its subsidiaries and the Acquired Business shall have been repaid in full, and all commitments in respect thereof terminated, and all guarantees and security therefor shall have been discharged and released, other than the Acquired Business’s indebtedness that is permitted to remain in effect under the terms of the Acquisition Agreement; and (iv) delivery of a solvency certificate in the form set forth in Exhibit D from the chief financial officer of the SPAC.

 

7.

PATRIOT Act, KYC, etc. The Lead Arranger shall have received (x) at least three (3) business days prior to the Closing Date all documentation and information as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Closing Date about the Borrower and its subsidiaries after giving effect to the Transactions mutually agreed to be required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and (y) at least three (3) business days prior to the Closing Date, with respect to the Borrower to the extent that it qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation and requested of the Borrower by the Lead Arranger or Lenders at least five (5) business days prior to the Closing Date.

 

 

EXHIBIT D

 

Form of Solvency Certificate

 

Date: ________, 20[·]

 

To the Administrative Agent and each of the Lenders party to the Credit Agreement referred to below:

 

I, the undersigned, the Chief Financial Officer of ______ , a _______  _____    (the “[ __ ]”), in that capacity only and not in my individual capacity (and without personal liability), do hereby certify as of the date hereof, and based upon (i) facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such fact and circumstances after the date hereof) and (ii) such materials and information as I have deemed relevant to the determination of the matters set forth in this certificate, that:

 

1.       This certificate is furnished to the Administrative Agent and the Lenders pursuant to Section __  of the Credit Agreement, dated as of _______  ____  , 201[  ], among _______  (the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this certificate shall have the meanings set forth in the Credit Agreement.

 

2.       For purposes of this certificate, the terms below shall have the following definitions:

 

(a)       “Fair Value”

 

The amount at which the assets (both tangible and intangible), in their entirety, of the Borrower and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.

 

(b)       “Present Fair Salable Value”

 

The amount that could be obtained by an independent willing seller from an independent willing buyer if the assets of the Borrower and its Subsidiaries taken as a whole are sold with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.

 

(c)       “Stated Liabilities”

 

The recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its Subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions, determined in accordance with GAAP consistently applied.

 

(d)       “Identified Contingent Liabilities”

 

The maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the Borrower and its Subsidiaries taken as a whole after giving effect to the Transactions (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities), as and to the extent identified and explained in terms of their nature and estimated magnitude by responsible officers of the Borrower.

 

 

(e)       “Will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature”

 

For the period from the date hereof through the Maturity Date, the Borrower and its Subsidiaries taken as a whole will have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.

 

(f)       “Do not have Unreasonably Small Capital”

 

For the period from the date hereof through the Maturity Date, the Borrower and its Subsidiaries taken as a whole after consummation of the Transactions is a going concern and has sufficient capital to ensure that it will continue to be a going concern for such period.

 

3.       For purposes of this certificate, I, or officers of the Borrower under my direction and supervision, have performed the following procedures as of and for the periods set forth below.

 

(a)       I have reviewed the financial statements (including the pro forma financial statements) referred to in Section ____  of the Credit Agreement.

 

(b)       I have knowledge of and have reviewed to my satisfaction the Credit Agreement.

 

(c)       As Chief Financial Officer of [ ___ ], I am familiar with the financial condition of the Borrower and its Subsidiaries.

 

4.       Based on and subject to the foregoing, I hereby certify on behalf of the Borrower that after giving effect to the consummation of the Transactions, it is my opinion that (i) the Fair Value and Present Fair Salable Value of the assets of the Borrower and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the Borrower and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iii) the Borrower and its Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature.

 

* * *

 

IN WITNESS WHEREOF, the Borrower has caused this certificate to be executed on its behalf by its Chief Financial Officer as of the date first written above.

 

[Borrower]

By:

	Name:
	Title: Chief Financial Officer

 

 

Exhibit 10.3

 

ACT II GLOBAL ACQUISITION CORP.

 

SUBSCRIPTION AGREEMENT

 

This SUBSCRIPTION AGREEMENT is entered into this 12th day of February, 2020 (this “Subscription Agreement”), by and between Act II Global Acquisition Corp., a Cayman Islands exempted company (the “Company”), and the undersigned (“Subscriber”).

 

WHEREAS, the Company entered into a Purchase Agreement, dated as of December 19, 2019 (as it may be amended, supplemented or otherwise modified from time to time, the “Transaction Agreement”), pursuant to which, among other things, the Company will purchase (the “Transaction”) all of the outstanding equity interests of Merisant Company, a Delaware corporation (“Merisant Delaware”), Merisant Luxembourg, a Société à responsabilité limitée organized under the laws of Luxembourg (“Merisant Luxembourg”), Mafco Worldwide LLC, a Delaware limited liability company (“Mafco”), Mafco Shanghai LLC, a Delaware limited liability company (“Mafco Shanghai”), EVD Holdings LLC, a Delaware limited liability company (“EVD”), and Mafco Deutschland GmbH, a private limited company organized under the laws of Germany (“Mafco Deutschland” and together with Merisant Delaware, Merisant Luxemourg, Mafco, Mafco Shanghai and EVD, the “Targets”) from Flavors Holdings, Inc., a Delaware corporation, MW Holdings I LLC, a Delaware limited liability company, MW Holdings III LLC, a Delaware limited liability company, and Mafco Foreign Holdings, Inc., a Delaware corporation (collectively, the “Sellers”);

 

WHEREAS, in connection with the Transaction, Subscriber desires to subscribe for and purchase from the Company (i) Class A ordinary shares, par value $0.0001 per share, of the Company (“Ordinary Shares”) and (ii) warrants representing the right to purchase Ordinary Shares (the “Warrants”), each in the amounts set forth on the signature page hereto (such amounts not subject to any further adjustment pursuant to the Warrant Amendment) (collectively, the “Acquired Securities”), for the aggregate purchase price set forth on the signature page hereto (the “Purchase Price”), and the Company desires to issue and sell to Subscriber the Acquired Securities in consideration of the payment of the Purchase Price by or on behalf of Subscriber to the Company on or prior to the Closing (as defined below);

 

WHEREAS, the Company represents that, simultaneously herewith, it is entering into subscription agreements with other subscribers (such subscribers, the “Other Subscribers” and together with Subscriber, the “Company Subscribers”, and such other subscription agreements, the “Other Subscription Agreements”) for the purchase of Ordinary Shares and Warrants for an aggregate purchase price of $75,000,000 (such aggregate purchase price plus the Purchase Price hereunder, the “Aggregate Purchase Price”) reflecting substantially the same terms as set forth herein (and in the same proportion of Ordinary Shares to Warrants as set forth herein);

 

WHEREAS, immediately prior to the closing of the Transaction, the Company intends to effect a deregistration under the Cayman Islands Companies Law (2020 Revision) and a domestication under Section 388 of the Delaware General Corporation Law (the “Domestication”), pursuant to which Act II’s jurisdiction of incorporation will be transferred by way of continuation from the Cayman Islands to the State of Delaware and the name of the Company will be changed to “Whole Earth Brands, Inc.”; and

 

WHEREAS, in connection with the Domestication, each of the Ordinary Shares shall be automatically converted into one share of common stock of the Delaware corporation (the “Common Stock”); and with respect to all periods from and after the Domestication, all referenced herein to Ordinary Shares shall be deemed to be references to shares of Common Stock.

 

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

1.            Subscription. Pursuant to the terms and subject to the conditions set forth herein, Subscriber hereby agrees to subscribe for and purchase, and the Company hereby agrees to issue and sell to Subscriber, upon the payment of the Purchase Price, the Acquired Securities (such subscription and issuance, the “Subscription”). The Warrants shall be substantially in the form attached hereto as Exhibit A.

 

2.            Closing.

 

a.            The closing of the Subscription contemplated hereby (the “Closing”) is contingent upon the substantially concurrent consummation of the Transaction and shall occur immediately prior thereto. Not less than five (5) business days prior to the scheduled closing date of the Transaction (the “Scheduled Closing Date”), the Company shall provide written notice to Subscriber (the “Closing Notice”) specifying (i) that the Company reasonably expects all conditions to the Closing to be satisfied on a date that is not less than five (5) business days from the date of the Closing Notice and (ii) instructions for wiring the Purchase Price for the Acquired Securities. At Closing, Subscriber shall deliver to the Company the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified in writing by the Company in the Closing Notice, and the Company shall issue and deliver the Acquired Securities to Subscriber (i) in book entry form, by updating the register of members of the Company, or (ii) upon Subscriber’s request in certificated form. The failure of the Closing to occur on the Scheduled Closing Date shall not terminate this Subscription Agreement or otherwise relieve either party of any of its obligations hereunder.

 

b.            Subscriber’s obligation to consummate the Closing shall be subject to the following conditions:

 

(i)               no suspension of the qualification of the Ordinary Shares or the shares of Common Stock for offering or sale or trading in the United States shall have occurred prior to the Closing;

 

(ii)             all representations and warranties of the Company and Subscriber contained in this Subscription Agreement shall be true and correct in all material respects as of the Closing, and consummation of the Closing shall constitute a reaffirmation by each of the Company and Subscriber of each of the representations, warranties and agreements of each such party contained in this Subscription Agreement as of the Closing;

 

(iii)            as of the Closing, no governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise prohibiting or enjoining consummation of the transactions contemplated hereby;

 

(iv)            the Transaction and the Debt Financing (as defined in the Transaction Agreement) shall be consummated prior to June 30, 2020, substantially concurrently with the Closing in accordance with the terms of the Transaction Agreement, the Sponsor Support Agreement (each as defined in the Transaction Agreement) and the debt commitment letter, dated as of December 19, 2019 (the “Debt Commitment Letter”), each as amended, and as delivered as so amended to Subscriber, prior to or simultaneously with the execution of this Subscription Agreement (and each as may be amended following the execution of this Subscription Agreement in accordance with this clause (iv)), and no provision or condition of the Transaction Agreement as amended, and as delivered as so amended to Subscriber, prior to or simultaneously with the execution of this Subscription Agreement (and as the Transaction Agreement may be amended following the execution of this Subscription Agreement in accordance with this clause (iv)) and no provision or condition of the Sponsor Support Agreement or the debt commitment letter, each as amended and as delivered as so amended to Subscriber, prior to or simultaneously with the execution of this Subscription Agreement (and each as may be amended following the execution of this Subscription Agreement in accordance with this clause (iv)), shall have been waived, further amended, supplemented or otherwise modified in any respect materially adverse to Subscriber; provided, however, that such waiver, further amendment, supplement or other modification may be consented to on behalf of all Company Subscribers by the prior written consent of Company Subscribers investing no less than sixty-six and two thirds percent (66.67%) of the Aggregate Purchase Price under this Agreement and the Other Subscription Agreements;

 

 

(v)            The purchase by Baron Funds of no less than $20 million of Ordinary Shares and Warrants (in the same proportion of Ordinary Shares to Warrants purchased by Subscriber hereunder) shall be consummated simultaneously with the Closing in accordance with the terms of the Other Subscription Agreement;

 

(vi)            (vi)        After giving effect to the Transaction, the Debt Financing and the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements, the total debt of the Company and its subsidiaries (inclusive of any unpaid principal and premium under any credit facilities, liabilities evidenced by bonds, notes, or other similar instruments, obligations evidenced by letters of credit to the extent drawn, and obligations under capital leases that would at such time be required to be capitalized and reflected as a liability on a balance sheet) less cash and cash equivalents shall not exceed $213,000,000 at Closing;

 

(vii)           Simultaneously with the Closing, the Purchaser Sponsor (as defined in the Transaction Agreement) and its affiliates shall irrevocably forfeit to the Company for no consideration Class B Ordinary Shares representing 3,000,000 Ordinary Shares on an as-converted basis and warrants to purchase 6,750,000 Ordinary Shares at a price of $11.50 per share (“Company Warrants”);

 

(viii)          Notwithstanding any provision of the Transaction Agreement, including Section 8.1(d), no more than 50% of the Ordinary Shares issued and outstanding as of December 16, 2019 shall be redeemed by the holders of the Company’s Ordinary Shares in connection with the Transaction;

 

(ix)             Prior to or simultaneously with the Closing, the Company shall have reduced the number of Ordinary Shares issuable upon exercise of the Company Warrants by 7,500,000 by paying the holders of such Company Warrants $0.75 per Company Warrant in exchange for reducing the shares issuable upon exercise of such Company Warrants by one-half; provided, however, that the payment amount per Company Warrant may be amended with the prior written consent of Company Subscribers investing no less than sixty-six and two thirds percent (66.67%) of the Aggregate Purchase Price under this Agreement and the Other Subscription Agreements; and

 

(x)              The Domestication shall have occurred and the Ordinary Shares issued hereunder and upon exercise of the Warrants shall have been approved for listing on the Nasdaq Stock Market, subject to official notice of issuance.

 

c.            At the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the Subscription as contemplated by this Subscription Agreement.

 

 

d.            For purposes of this Subscription Agreement, “business day” shall mean any day other than (i) any Saturday or Sunday or (ii) any other day on which banks located in New York, New York are required or authorized by applicable law to be closed for business.

 

3.             Company Representations and Warranties. The Company represents and warrants to Subscriber that:

 

a.            The Company has been duly incorporated and is validly existing as an exempted company in good standing under the laws of the Cayman Islands, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.

 

b.            The authorized share capital of the Company is $22,100 divided into 200,000,000 Ordinary Shares, 20,000,000 Class B ordinary shares of a par value of $0.0001 each (“Class B Ordinary Shares”), and 2,000,000 preference shares of a par value of $0.0001 each. As of the date of this Subscription Agreement: (i) 30,000,000 Ordinary Shares, including those issued as part of units, each of which consists of one Ordinary Share and one-half of one Company Warrant (each, a “Company Unit”), are issued and outstanding, (ii) 21,750,000 Company Warrants are issued and outstanding, including those issued as part of Company Units and those held by the Purchaser Sponsor, and (iii) Class B Ordinary Shares representing 7,500,000 Ordinary Shares on an as-converted basis are issued and outstanding. All holders of Class B Ordinary Shares have irrevocably waived any anti-dilution adjustment as to the ratio by which Class B Ordinary Shares convert into Ordinary Shares or shares of Common Stock or any other measure with an anti-dilutive effect, in any case, that results from or is related to the Transaction or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. All issued and outstanding Ordinary Shares, Class B Ordinary Shares, Company Warrants and Company Units are validly issued, fully paid and non-assessable and are not subject to preemptive rights. Except for the Company Warrants, the Company Units, the Class B Ordinary Shares referenced above and the obligations of the Company under the Transaction Agreement, this Subscription Agreement and the Other Subscription Agreements, there are no outstanding, and between the date hereof and the Closing the Company will not issue or sell any (a) shares, equity interests or voting securities of the Company, (b) securities of the Company convertible into or exchangeable for shares or other equity interests or voting securities of the Company, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangement or commitments of any character, whether or not contingent, of the Company to acquire from any Person, and no obligation of the Company to issue, any shares or other equity interests or voting securities of the Company or any securities convertible into or exchangeable for such shares or other equity interest or voting securities, (d) equity equivalents or other similar rights of or with respect to the Company, or (e) obligations of the Company to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. As of the date hereof, the Purchaser Sponsor (as defined in the Transaction Agreement) and its affiliates hold Class B Ordinary Shares in an amount representing 7,500,000 Ordinary Shares on an as-converted basis and 6,750,000 Company Warrants. Upon the Domestication, each outstanding Ordinary Share will be converted into one share of Common Stock, and each outstanding Company Warrant will become exercisable for one share of Common Stock for each Ordinary Share (prior to giving effect to the Warrant Amendment) for which such Company Warrant was exercisable immediately prior to the Domestication.

 

c.            The Acquired Securities and the Ordinary Shares issuable upon exercise of the Warrants will be, prior to the issuance and delivery to Subscriber against full payment thereof in accordance with the terms of this Subscription Agreement and the Company’s amended and restated memorandum and articles of association, duly authorized and, when issued and delivered to Subscriber, by updating the register of members of the Company, against full payment therefor in accordance with the terms of this Subscription Agreement, and following the statutory updates to the register of members of the Company in respect of the Ordinary Shares, the Acquired Securities will be validly issued and the Ordinary Shares will be fully paid (in the case of the Ordinary Shares issuable upon exercise of the Warrants, upon payment of the exercise price) and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Company’s amended and restated memorandum and articles of association or under the Cayman Islands Companies Law (2020 Revision).

 

 

d.            This Subscription Agreement has been duly authorized, executed and delivered by the Company and is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.

 

e.            As of the Closing, the Company will be treated as an association taxable as a corporation for United States federal income tax purposes.

 

f.             The execution, delivery and performance of this Subscription Agreement (including the issuance and sale of the Acquired Securities contemplated hereby and the compliance by the Company with all of the provisions of this Subscription Agreement applicable to it and the consummation of the transactions contemplated hereby) will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”) or materially affect the validity of the Acquired Securities or the legal authority of the Company to comply in all material respects with the terms of this Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of the Company or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Material Adverse Effect or materially affect the validity of the Acquired Securities or the legal authority of the Company to comply in all material respects with this Subscription Agreement.

 

g.            Company SEC Documents; Controls.

 

(i)              The Company has timely filed with or furnished to the Securities and Exchange Commission (the “SEC”) all forms, reports, schedules and statements required to be filed or furnished by it with the SEC (such forms, reports, schedules and statements, the “Company SEC Documents”). As of their respective filing dates, or, if amended or superseded by subsequent filing prior to the date hereof, as of the date of the last such amendment or superseding filing (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of the relevant meetings, respectively), each of the Company SEC Documents, complied as to form in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Documents, and none of the Company SEC Documents contained, when filed or, if amended or superseded prior to the date of this Subscription Agreement, as of the date of the last such amendment or superseding filing, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. To the knowledge of the Company, as of the date hereof, none of the Company SEC Documents are the subject of (i) ongoing SEC review or outstanding SEC comment or (ii) outstanding SEC investigation.

 

 

(ii)             The financial statements of the Company contained in the Company SEC Documents, including any notes and schedules thereto, (i) complied as to form in all material respects with the rules and regulations of the SEC with respect thereto as of their respective dates; (ii) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the SEC or as may be permitted by the SEC for Quarterly Reports on Form 10-Q); and (iii) fairly presented in all material respects in accordance with applicable requirements of GAAP (subject, in the case of the unaudited statements, to normal year-end audit adjustments) the financial position of the Company and its consolidated subsidiaries, as of their respective dates and the results of operations and the cash flows of the Company and its consolidated subsidiaries, for the periods presented therein.

 

(iii)            The Company has established and maintains a system of “internal controls over financial reporting” (as defined in Rule 13a-15(f) and 15d-15(f) of the Exchange Act) as required by Rule 13a-15 under the Exchange Act and the listing standards of NASDAQ. The Company’s “disclosure controls and procedures” (as defined in Rule 13a-15(e) and 15d-15(e) of the Exchange Act) are reasonably designed to ensure that all material information required to be disclosed by the Company in the reports that it files under the Exchange Act are recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions

 

4.            Subscriber Representations and Warranties. Subscriber represents and warrants to the Company, Moelis & Company LLC (“Moelis”) and Goldman Sachs & Co. LLC (“GS” and together with Moelis, the “Placement Agents”) that:

 

a.            Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.

 

b.           This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. This Subscription Agreement is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.

 

c.            The execution, delivery and performance by Subscriber of this Subscription Agreement (including the compliance by the Subscriber with all of the provisions of this Subscription Agreement applicable to it and the consummation of the transactions contemplated hereby) will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”) or materially affect the legal authority of Subscriber to comply in all material respects with the terms of this Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement.

 

 

d.            Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act or an “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule A, and an “Institutional Account” (as defined in FINRA 4512(c)), (ii) is acquiring the Acquired Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the Acquired Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Acquired Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act and shall provide the requested information on Schedule A following the signature page hereto. Subscriber is not an entity formed for the specific purpose of acquiring the Acquired Securities.

 

e.            Subscriber understands that the Acquired Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Acquired Securities have not been registered under the Securities Act. Subscriber understands that the Acquired Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and that any book-entry position or certificates representing the Acquired Securities shall contain a legend to such effect. Subscriber acknowledges that the Acquired Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Acquired Securities will be subject to transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Acquired Securities and may be required to bear the financial risk of an investment in the Acquired Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Acquired Securities.

 

f.            Subscriber understands and agrees that Subscriber is purchasing the Acquired Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Company or its affiliates or any of their respective officers or directors, or the Company’s agents (including the Placement Agents) expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement.

 

g.           Subscriber represents and warrants that its acquisition and holding of the Acquired Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law.

 

h.           In making its decision to purchase the Acquired Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber. Subscriber acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the Acquired Securities, including with respect to the Company, the Targets and the Transaction. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Acquired Securities.

 

 

i.             Subscriber became aware of this offering of the Acquired Securities solely by means of direct contact between Subscriber, on the one hand, and the Company, the Targets, the Placement Agents and/or their respective advisors (including without limitation, attorneys, accountants, bankers, consultants, financial advisors), agents, control persons, representatives, affiliates, directors, officers, managers, members, and/or employees, and/or the representatives of such persons (such parties, collectively “Representatives”), on the other hand. The Acquired Securities were offered to Subscriber solely by direct contact between Subscriber and the Company, the Targets, the Placement Agents and/or their respective Representatives. Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person or entity (including, without limitation, the Company, the Targets, the Placement Agents or their respective Representatives), other than the representations and warranties contained in this Subscription Agreement, in making its investment or decision to invest in the Company. Subscriber did not become aware of this offering of the Acquired Securities, nor were the Acquired Securities offered to Subscriber, by any other means, and none of the Company, the Targets, the Placement Agents or their respective Representatives acted as investment adviser, broker or dealer to Subscriber. Subscriber acknowledges that the Company represents and warrants that the Acquired Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.

 

j.             Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Acquired Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Acquired Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision.

 

k.           Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Acquired Securities and determined that the Acquired Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber acknowledges specifically that a possibility of total loss exists.

 

l.             Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Acquired Securities or made any findings or determination as to the fairness of this investment.

 

m.            Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), the OFAC Consolidated Sanctions List or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC Lists”), or a person or entity prohibited by any OFAC sanctions program or a person or entity whose property and interests in property subject to U.S. jurisdiction are otherwise blocked under any U.S. laws, Executive orders or regulations, (ii) an entity owned, directly or indirectly, individually or in the aggregate, 50 percent or more by one or more persons described in subsection (i), (iii) a person or entity listed on the Sectoral Sanctions Identifications (“SSI”) List maintained by OFAC or otherwise determined by OFAC to be subject to one or more of the Directives issued under Executive Order 13662 of March 20, 2014, or an entity owned, directly or indirectly, individually or in the aggregate, 50 percent or more by one or more persons or entities that are subject to the SSI List restrictions, (iv) a person or entity named on the U.S. Department of Commerce, Bureau of Industry and Security Denied Persons List, Entity List, or Unverified List (“BIS Lists”), or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC and BIS sanctions programs, including the OFAC Lists and BIS Lists, and otherwise to ensure compliance with all applicable sanctions and embargo laws, statutes, and regulations. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Acquired Securities were legally derived.

 

 

n.            Subscriber has or has commitments to have, and at least one (1) business day prior to the Scheduled Closing Date will have, sufficient funds to pay the Purchase Price pursuant to Section 2(a) of this Subscription Agreement and consummate the Closing when required pursuant to this Subscription Agreement.

 

5.             Reserved.

 

6.             Registration Rights.

 

a.            The Company agrees that, within thirty (30) calendar days after the consummation of the Transaction (the “Filing Deadline”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement to register under and in accordance with the provisions of the Securities Act, the resale of all Registrable Securities (as defined below) on Form S-3 (which shall be filed pursuant to Rule 415 under the Securities Act as a secondary-only registration statement), if the Company is then eligible for such short form, or any similar or successor short form registration or, if the Company is not then eligible for such short form registration or would not be able to register for resale all of the Registrable Securities on Form S-3, on Form S-1 or any similar or successor long form registration (the “Registration Statement”). The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as practicable after the filing thereof, but no later than the thirty (30) calendar days following the Filing Deadline (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended to seventy-five (75) calendar days after the Filing Deadline if the Registration Statement is reviewed by, and receives comments from, the SEC; provided, however, that the Company’s obligations to include the Registrable Securities of a Holder in the Registration Statement are contingent upon such Holder furnishing in writing to the Company such information regarding such Holder, the securities of the Company held by such Holder and the intended method of disposition of the Registrable Securities as shall be reasonably requested by the Company to effect the registration of the Registrable Securities, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling shareholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the use of the Registration Statement during any customary blackout or similar period not to exceed thirty (30) calendar days in any one instance or sixty (60) days in the aggregate during any twelve (12) month period. The Company will provide a draft of the Registration Statement to the Subscriber for review at least three (3) business days in advance of filing the Registration Statement. In no event shall any Holder be identified as a statutory underwriter in the Registration Statement unless required by the SEC. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Acquired Securities by the Holders or otherwise, such Registration Statement shall register for resale such number of Ordinary Shares which is equal to the maximum number of Ordinary Shares as is permitted by the SEC. In such event, the number of Ordinary Shares to be registered for each selling shareholder named in the Registration Statement shall be reduced pro rata among all such selling shareholders and as promptly as practicable after being permitted to register additional Ordinary Shares under Rule 415 of the Securities Act, the Company shall amend the Registration Statement or file a new Registration Statement to register such additional Ordinary Shares and cause such amendment or Registration Statement to become effective as promptly as practicable. The Company will use its reasonable best efforts to maintain the continuous effectiveness of the Registration Statement until all such securities cease to be Registrable Securities (as defined below) or such shorter period upon which all Holders with Registrable Securities included in such Registration Statement have notified the Company that such Registrable Securities have actually been sold. The Company will use its reasonable best efforts to (i) cause the removal of all restrictive legends from any Registrable Securities being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of such Registrable Securities and, at the request of a Holder, cause the removal of all restrictive legends from any Acquired Securities, and Ordinary Shares issuable or issued upon exercise of the Warrants, held by such Holder that may be sold by such Holder without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, (ii) cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under subclause (i) upon the receipt of such supporting documentation, if any, as reasonably requested by such counsel, and (iii) ensure that any Registrable Securities being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of such Registrable Securities will be eligible for clearance and settlement through the facilities of The Depository Trust Company. The Company will use reasonable best efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable Holders to resell Registrable Securities pursuant to the Registration Statement or Rule 144 under the Securities Act (“Rule 144”), as applicable, qualify the Registrable Securities for listing on the applicable stock exchange, update or amend the Registration Statement as necessary to include Registrable Securities and provide customary notice to Holders. “Registrable Securities” shall mean, as of any date of determination, the Acquired Securities, the Ordinary Shares issuable or issued upon exercise of the Warrants and any other equity security issued or issuable with respect to the Acquired Securities or the Ordinary Shares issuable or issued upon exercise of the Warrants, by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event or otherwise. As to any particular Registrable Securities, once issued, such securities shall cease to be Registrable Securities at the earliest of (A) the date all Acquired Securities, and the Ordinary Shares issuable or issued upon exercise of the Warrants, held by a Holder, may be sold by such Holder without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144, other than the requirement for the Issuer to be in compliance with the current public information required under Rule 144(c), (C) when they shall have ceased to be outstanding or (D) three years from the date of effectiveness of the Registration Statement. “Holder” shall mean the Subscriber or affiliate of the Subscriber to which the rights under this Section 6 shall have been assigned.

 

 

b.           The Company shall, notwithstanding any termination of this Subscription Agreement, indemnify, defend and hold harmless Subscriber and any other Holder, the officers, directors, trustees, agents, partners, members, managers, shareholders, affiliates, employees and investment advisers of each of them, each person who controls Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the officers, directors, trustees, agents, partners, members, managers, shareholders, affiliates, employees and investment advisers of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation and investigation and reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, or (ii) any violation or alleged violation by the Company of the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this Section 6, except insofar as and to the extent, but only to the extent, that such untrue statements omissions or alleged omissions are based solely upon information regarding Subscriber furnished in writing to the Company by Subscriber expressly for use therein. The Company shall notify Subscriber and each other Holder promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 6 of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Acquired Securities by Subscriber or any other Holder.

 

 

c.            Subscriber or any Holder shall, severally and not jointly with any other purchaser, indemnify and hold harmless the Company, its directors, officers, agents and employees, each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding Subscriber or any Holder furnished to the Company by Subscriber or such Holder expressly for use therein. In no event shall the liability of Subscriber or any Holder be greater in amount than the dollar amount of the net proceeds received by Subscriber or such Holder upon the sale of the Acquired Securities giving rise to such indemnification obligation.

 

7.            Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (a) such date and time as the Transaction Agreement is terminated in accordance with its terms, (b) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement; provided, that each of the Company and the Sellers consents in writing to such termination, or (c) if any of the conditions to Closing set forth in Section 2 of this Subscription Agreement that are not waived by the Subscriber are not satisfied, or are not capable of being satisfied, on or prior to the Closing and, as a result thereof, the transactions contemplated by this Subscription Agreement are not and will not be consummated at the Closing,; provided, that nothing herein will relieve any party hereto from liability for any willful breach hereof (including for the avoidance of doubt Subscriber’s willful breach of Section 2(b)(ii) of this Subscription Agreement with respect to its representations and warranties as of the Closing Date) prior to the time of termination, and each party hereto will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. The Company shall notify Subscriber of the termination of the Transaction Agreement promptly after the termination of the Transaction Agreement.

 

 

8.            Trust Account Waiver. Subscriber acknowledges that the Company is a blank check company formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. Subscriber further acknowledges that, as described in the Company’s final prospectus, dated April 25, 2019, related to its initial public offering (the “Prospectus”) available at www.sec.gov, substantially all of the Company’s assets consist of the cash proceeds of the Company’s initial public offering and private placements of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit of the Company, its public shareholders and the underwriters of the Company’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to the Company to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Prospectus. For and in consideration of the Company entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, Subscriber, on behalf of itself and its Representatives, hereby irrevocably waives any and all right, title and interest, or any claim of any kind they have or may have in the future, in or to any monies held in the Trust Account, provided, however, that nothing in this Section 8 shall be deemed to limit any Subscriber’s right, title, interest or claim to the Trust Account by virtue of such Subscriber’s record or beneficial ownership of securities of the Company acquired by any means other than pursuant to this Subscription Agreement, including but not limited to any redemption right with respect to any such securities of the Company, and agrees not to seek recourse or make or bring any action, suit, claim or other proceeding against the Trust Account as a result of, or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Acquired Securities regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability. Subscriber acknowledges and agrees that it shall not have any redemption rights with respect to the Acquired Securities pursuant to the Company’s organizational documents in connection with the Transaction or any other business combination, any subsequent liquidation of the Trust Account, the Company or otherwise. In the event Subscriber has any claim against the Company as a result of, or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Acquired Securities, it shall pursue such claim solely against the Company and its assets outside the Trust Account and not against the Trust Account or any monies or other assets in the Trust Account.

 

9.            Miscellaneous.

 

a.            Subscriber acknowledges that the Company and others will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, Subscriber agrees to promptly notify the Company if any of the acknowledgments, understandings, agreements, representations and warranties set forth herein are no longer accurate in all material respects.

 

b.            The Company is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

c.            Neither this Subscription Agreement nor any rights that may accrue to Subscriber hereunder (other than the Acquired Securities acquired hereunder, if any, and the Subscriber’s rights under Section 6; provided that such rights under Section 6 may only be assigned to affiliates of the Subscriber) may be transferred or assigned; provided, however, that Subscriber may assign this Subscription Agreement to an affiliate subject to the assignee executing a joinder in a form acceptable to the Company; provided, further, that any such assignment shall not relieve Subscriber of any of its obligations hereunder unless and until the assignee satisfies such obligations in their entirety.

 

d.           All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.

 

e.            The Company may request from Subscriber such additional information as the Company may reasonably deem necessary to evaluate the eligibility of Subscriber to acquire the Acquired Securities, and Subscriber shall provide such information as may be reasonably requested, to the extent readily available and to the extent consistent with its internal policies and procedures.

 

 

f.             This Subscription Agreement may not be modified, waived or terminated except (i) by an instrument in writing, signed by the party against whom enforcement of such modification, waiver, or termination is sought and (ii) after obtaining prior written consent from the Company and the Sellers; provided, that Sections 4 and 9(h) of this Subscription Agreement may not be amended, terminated or waived in a manner that is material and adverse to either or both of the Placement Agents without the written consent of the affected Placement Agent(s).

 

g.            This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

h.            Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns. The parties hereto agree that the Placement Agents are express third-party beneficiaries of their express rights in Section 4, Section 9(f) and this Section 9(h) of this Subscription Agreement. The parties hereto acknowledge and agree that the Placement Agents shall be entitled to seek and obtain equitable relief, without proof of actual damages, including an injunction or injunctions or order for specific performance to prevent breaches of their rights referenced in the immediately preceding sentence. Each of the parties hereto and the Placement Agents shall be entitled to seek and obtain equitable relief, without proof of actual damages, including an injunction or injunctions or order for specific performance to prevent breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement to cause the Company to cause, or directly cause, Subscriber to fund the Purchase Price and cause the Closing to occur if the conditions in Section 2(b) have been satisfied or, to the extent permitted by applicable law, waived. Each party hereto further agrees that the none of the parties hereto or the Placement Agents shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9(h), and each party hereto irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

 

i.             If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.

 

j.             This Subscription Agreement may be executed in one or more counterparts (including by facsimile or electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.

 

k.            The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise.

 

 

l.             THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE SUPREME COURT OF THE STATE OF NEW YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR ANY SUCH DOCUMENT THAT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH A NEW YORK STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 9(l) OF THIS SUBSCRIPTION AGREEMENT OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.

 

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9(l).

 

m.           This Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

n.            The Company grants the Subscriber permission to use the Company’s and its subsidiaries’ names and logos in the Subscriber’s or its respective affiliates’ marketing materials. The Subscriber or its respective affiliate, as applicable, shall include a trademark attribution notice giving notice of the Company’s or its subsidiaries’ ownership of its trademarks in the marketing materials in which the Company’s or its subsidiaries’ names and logos appear.

 

 

o.            From and after the date hereof, neither the Company nor any of its subsidiaries shall, without the prior written consent of the relevant Subscriber, (i) use in advertising, publicity, or otherwise the name of such Subscriber or any of its affiliates, or any partner or employee of such Subscriber or any of its affiliates, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by such Subscriber or any of its affiliates unless required by law (including any filings with the SEC), or (ii) represent, directly or indirectly, that any product or any service provided by the Company or any subsidiary has been approved or endorsed by any Subscriber or any of such Subscriber’s affiliates.

 

p.            The Subscriber hereby waives any right that it might have in connection with the Warrant Amendment to receive a cash payment with respect to the Warrants it has subscribed for under this Subscription Agreement and agrees that no such cash payment will be made to the Subscriber in respect of any such Warrants.

 

q.            The Subscriber hereby unconditionally and irrevocably agrees that (i) at any duly called meeting of the warrantholders of the Company (or any adjournment or postponement thereof), it shall (to the extent it so entitled) appear at the meeting, in person or by proxy, or otherwise cause its Warrants to be counted as present thereat for purposes of establishing a quorum, and it shall vote or consent (or cause to be voted or consented), in person or by proxy, all of the Warrants it owns beneficially or of record in favor of a Warrant Amendment effective prior to Closing solely to reduce the number of Ordinary Shares issuable upon exercise of the Company Warrants by 7,500,000 by paying the holders of such Company Warrants $0.75 per Company Warrant in exchange for reducing the shares issuable upon exercise of such Company Warrants by one-half and make any conforming amendments required in connection with the Domestication (a “Conforming Warrant Amendment”), and (ii) in any action by written consent of the warrantholders of the Company, it shall (to the extent it is so entitled) consent (or cause to be consented) all of the Warrants it owns beneficially or of record in favor of a Conforming Warrant Amendment.

 

[Signature Pages Follow]

 

 

IN WITNESS WHEREOF, each of the Company and Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.

 

	ACT II GLOBAL ACQUISITION CORP.
	By:
		Name:
		Title:
Date:    ________________________

 

Signature Page to Subscription Agreement

 

 

SUBSCRIBER:
Signature of Subscriber:			Signature of Joint Subscriber, if applicable:
By:			By:
Name:			Name:
Title:			Title:
Date:
Name of Subscriber:			Name of Joint Subscriber, if applicable:
(Please print. Please indicate name and capacity of person signing above)			(Please Print. Please indicate name and capacity of person signing above)
Name in which shares are to be registered
(if different):

 

Email Address:  ____________________
If there are joint investors, please check one:
Joint Tenants with Rights of Survivorship
Tenants-in-Common
Community Property
Subscriber’s EIN:  __________________		Joint Subscriber’s EIN: _____________________
Business Address:		Mailing Address (if different):
Attn: __________________________		Attn: _______________________
Telephone No.: ____________________		Telephone No.: ______________________
Facsimile No.: _______________________		Facsimile No.: _________________________

 

Aggregate Number of Ordinary Shares subscribed for: ________________

Aggregate Number of Ordinary Shares issuable upon exercise of the Warrants subscribed for:  ______________________

Jurisdiction of residency:  ________________________________________

Aggregate Purchase Price: $ ___________________

 

You must pay the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Company in the Closing Notice.

 

Signature Page to Subscription Agreement

 

 

SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBERS

 

A.

QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the applicable subparagraphs):

1.

We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act, a “QIB”).

2.

We are subscribing for the Acquired Securities as a fiduciary or agent for one or more investor accounts, and each owner of such account is a QIB.

 

***OR***

 

B.

ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs):

1.

We are an “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act), and have marked and initialed the appropriate boxes on the following page indicating all provisions under which we qualify as an “accredited investor.”

2.

We are not a natural person.

 

***AND***

 

C.

AFFILIATE STATUS (Please check the applicable box) SUBSCRIBER:

is:

is not:

an “affiliate” (as defined in Rule 144) of the Company or acting on behalf of an affiliate of the Company.

 

***AND***

 

D.

INSTITUTIONAL ACCOUNT STATUS (Please check the applicable box)

is:

is not:

an “Institutional Account” (as defined in FINRA 4512(c)).

 

This page should be completed by Subscribers
and constitutes a part of the Subscription Agreement.

 

 

Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. Subscriber has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies as an “accredited investor.”

 

¨ Any bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity;

 

¨ Any broker or dealer registered pursuant to Section 15 of the Exchange Act;

 

¨ Any insurance company as defined in Section 2(a)(13) of the Securities Act;

 

¨ Any investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act;

 

¨ Any Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958;

 

¨ Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;

 

¨ Any employee benefit plan, within the meaning of ERISA, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000;

 

¨ Any private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;

 

¨ Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or

 

¨ Any trust with assets in excess of $5,000,000, not formed to acquire the securities offered, whose purchase is directed by a sophisticated person.

 

 

EXHIBIT A

 

FORM OF WARRANT

 

 

 

WARRANT AGREEMENT, DATED APRIL 25, 2019, BY AND BETWEEN THE COMPANY AND CONTINENTAL STOCK TRANSFER & TRUST COMPANY, AS WARRANTAGENT

 

Exhibit 4.1

 

WARRANT AGREEMENT

 

THIS WARRANT AGREEMENT (this “Agreement”), dated as of April 25, 2019, is by and between Act II Global Acquisition Corp., a Cayman Islands exempted company (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”, also referred to herein as the “Transfer Agent”).

 

WHEREAS, the Company is engaged in an initial public offering (the “Offering”) of units of the Company’s equity securities, each such unit comprised of one Class A ordinary share of the Company, par value $0.0001 per share (“Ordinary Shares”) and one-half of one redeemable Public Warrant (as defined below) (the “Units”) and, in connection therewith, has determined to issue and deliver up to 13,050,000 warrants (or up to 15,007,500 warrants if the Over-allotment Option is exercised in full) to public investors in the Offering (the “Public Warrants”); and

 

WHEREAS, on April 25, 2019, the Company entered into that certain Private Placement Warrants Purchase Agreement with Act II Global LLC, a Delaware limited liability company (the “Sponsor”), pursuant to which the Sponsor agreed to purchase an aggregate of 6,750,000 warrants (regardless of whether the Over-allotment Option (as defined below) in connection with the Company’s Offering is exercised in full) simultaneously with the closing of the Offering bearing the legend set forth in Exhibit B hereto (the “Private Placement Warrants”) at a purchase price of $1.00 per Private Placement Warrant; and

 

WHEREAS, in order to finance the Company’s transaction costs in connection with an intended initial Business Combination (as defined below), the Sponsor or an affiliate of the Sponsor or certain of the Company’s executive officers and directors may, but are not obligated to, loan to the Company funds as the Company may require, of which up to $1,500,000 of such loans may be convertible into up to an additional 1,500,000 warrants at a price of $1.00 per warrant (the “Working Capital Warrants”); and

 

WHEREAS, following consummation of the Offering, the Company may issue additional warrants (“Post IPO Warrants”; together with the Private Placement Warrants, the Working Capital Warrants and the Public Warrants) in connection with, or following the consummation by the Company of, a Business Combination (defined below); and

 

WHEREAS, the Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statements on Form S-1, File Nos. 333-230756 and 333-231037 (collectively, the “Registration Statement”) and prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Units, the Public Warrants and the Ordinary Shares included in the Units; and

 

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and

 

WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and

 

WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:

 

1.             Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.

 

2.             Warrants.

 

2.1           Form of Warrant. Each Warrant shall be issued in registered form only, and, if a physical certificate is issued, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board, President, Chief Executive Officer, Chief Financial Officer, Secretary or other principal officer of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.

 

 

2.2           Effect of Countersignature. If a physical certificate is issued, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant certificate shall be invalid and of no effect and may not be exercised by the holder thereof.

 

2.3           Registration.

 

2.3.1       Warrant Register. The Warrant Agent shall maintain books (the “Warrant Register”) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. All of the Public Warrants shall initially be represented by one or more book-entry certificates (each, a “Book-Entry Warrant Certificate”) deposited with The Depository Trust Company (the “Depositary”) and registered in the name of Cede & Co., a nominee of the Depositary. Ownership of beneficial interests in the Public Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by (i) the Depositary or its nominee for each Book-Entry Warrant Certificate, or (ii) institutions that have accounts with the Depositary (each such institution, with respect to a Warrant in its account, a “Participant”).

 

If the Depositary subsequently ceases to make its book-entry settlement system available for the Public Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Public Warrants are not eligible for, or it is no longer necessary to have the Public Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant Agent for cancellation each Book-Entry Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver to the Depositary definitive certificates in physical form evidencing such Warrants (“Definitive Warrant Certificate”). Such Definitive Warrant Certificate shall be in the form annexed hereto as Exhibit A, with appropriate insertions, modifications and omissions, as provided above.

 

2.3.2        Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on a Definitive Warrant Certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.

 

2.4           Detachability of Warrants. The Ordinary Shares and Public Warrants comprising the Units shall begin separate trading on the 52nd day following the date of the Prospectus or, if such 52nd day is not on a day, other than a Saturday, Sunday or federal holiday, on which banks in New York City are generally open for normal business (a “Business Day”), then on the immediately succeeding Business Day following such date, or earlier (the “Detachment Date”) with the consent of Cantor Fitzgerald & Co., as representative of the several underwriters, but in no event shall the Ordinary Shares and the Public Warrants comprising the Units be separately traded until (A) the Company has filed a current report on Form 8-K with the Commission containing an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the Offering, including the proceeds received by the Company from the exercise by the underwriters of their right to purchase additional Units in the Offering (the “Over-allotment Option”), if the Over-allotment Option is exercised prior to the filing of the Form 8-K, and (B) the Company issues a press release and files with the Commission a current report on Form 8-K announcing when such separate trading shall begin.

 

2.5           No Fractional Warrants Other Than as Part of Units. The Company shall not issue fractional Warrants other than as part of the Units, each of which is comprised of one Ordinary Share and one-half of one Public Warrant. If, upon the detachment of Public Warrants from Units or otherwise, a holder of Warrants would be entitled to receive a fractional Warrant, the Company shall round down to the nearest whole number the number of Warrants to be issued to such holder.

 

2.6           Private Placement Warrants and Working Capital Warrants. The Private Placement Warrants, the Working Capital Warrants and the Forward Purchase Warrants shall be identical to the Public Warrants, except that so long as they are held by the Sponsor or any Permitted Transferees (as defined below), as applicable, the Private Placement Warrants and the Working Capital Warrants: (i) may be exercised for cash or on a cashless basis, pursuant to subsection 3.3.1 (c) hereof, (ii) may not be transferred, assigned or sold until thirty (30) days after the completion by the Company of an initial Business Combination (as defined below), and (iii) shall not be redeemable by the Company; provided, however, that in the case of (ii) the Private Placement Warrants and the Working Capital Warrants and any Ordinary Shares held by the Sponsor or any Permitted Transferees, as applicable, and issued upon exercise of the Private Placement Warrants and the Working Capital Warrants may be transferred by the holders thereof:

 

(a)           to the Company’s officers or directors, any affiliate or family member of any of the Company’s officers or directors, any affiliate of the Sponsor or to any member(s) of the Sponsor or any of their affiliates, officers, directors and direct and indirect equityholders;

 

(b)           in the case of an individual, by gift to a member such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such individual or to a charitable organization;

 

 

(c)           in the case of an individual, by virtue of the laws of descent and distribution upon death of such person;

 

(d)           in the case of an individual, pursuant to a qualified domestic relations order;

 

(e)           by private sales or transfers made in connection with the consummation of an initial Business Combination at prices no greater than the price at which the Warrants were originally purchased;

 

(f)            in the event of the Company’s liquidation prior to consummation of the Company’s Business Combination; or

 

(g)           by virtue of the laws of the State of Delaware or the Sponsor’s limited liability company agreement upon dissolution of the Sponsor;

 

provided, however, that, in the case of clauses (a) through (e) or (g), these transferees (the “Permitted Transferees”) enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement.

 

2.7           Working Capital Warrants. The Working Capital Warrants shall be identical to the Private Placement Warrants.

 

2.8           Post-IPO Warrants. The Post-IPO Warrants, when and if issued, shall have the same terms and be in the same form as the Public Warrants except as may be agreed upon by the Company.

 

3.             Terms and Exercise of Warrants.

 

3.1          Warrant Price. Each Warrant shall entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of Ordinary Shares stated therein, at the price of $11.50 per share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement shall mean the price per share at which Ordinary Shares may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20) Business Days, provided, that the Company shall provide at least twenty (20) days prior written notice of such reduction to Registered Holders of the Warrants and, provided further that any such reduction shall be identical among all of the Warrants.

 

3.2           Duration of Warrants. A Warrant may be exercised only during the period (the “Exercise Period”) commencing on the later of: (i) the date that is thirty (30) days after the first date on which the Company completes a merger, share exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Company and one or more businesses (a “Business Combination”), or (ii) the date that is twelve (12) months from the date of the closing of the Offering, and terminating at 5:00 p.m., New York City time on the earlier to occur of: (x) the date that is five (5) years after the date on which the Company completes its initial Business Combination, (y) the liquidation of the Company, or (z) other than with respect to the Private Placement Warrants and the Working Capital Warrants to the extent then held by the original purchasers thereof or their Permitted Transferees, the Redemption Date (as defined below) as provided in Section 6.2 hereof (the “Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in subsection 3.3.2 below with respect to an effective registration statement. Except with respect to the right to receive the Redemption Price (as defined below) (other than with respect to a Private Placement Warrant or a Working Capital Warrant) to the extent then held by the original purchasers thereof or their Permitted Transferees in the event of a redemption (as set forth in Section 6 hereof), each outstanding Warrant (other than a Private Placement Warrant or a Working Capital Warrant to the extent then held by the original purchasers thereof or their Permitted Transferees in the event of a redemption) not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, that the Company shall provide at least twenty (20) days prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants.

 

3.3           Exercise of Warrants.

 

3.3.1       Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant may be exercised by the Registered Holder thereof by delivering to the Warrant Agent at its corporate trust department (i) the Definitive Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the “Book-Entry Warrants”) on the records of the Depositary to an account of the Warrant Agent at the Depositary designated for such purposes in writing by the Warrant Agent to the Depositary from time to time, (ii) an election to purchase (“Election to Purchase”) Ordinary Shares pursuant to the exercise of a Warrant, properly completed and executed by the Registered Holder on the reverse of the Definitive Warrant Certificate or, in the case of a Book-Entry Warrant Certificate, properly delivered by the Participant in accordance with the Depositary’s procedures, and (iii) payment in full of the Warrant Price for each full Ordinary Share as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the Ordinary Shares and the issuance of such Ordinary Shares, as follows:

 

(a)           by certified check payable to the order of the Warrant Agent or by wire transfer;

 

 

(b)           in the event of a redemption pursuant to Section 6 hereof in which the Company’s board of directors (the “Board”) has elected to require all holders of the Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Fair Market Value”, as defined in this subsection 3.3.1(b) over the Warrant Price by (y) the Fair Market Value. Solely for purposes of this subsection 3.3.1(b) and Section 6.3, the “Fair Market Value” shall mean the average last sale price of the Ordinary Shares for the ten (10) trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of the Warrants, pursuant to Section 6 hereof;

 

(c)           with respect to any Private Placement Warrant or Working Capital Warrant, so long as such Private Placement Warrant or Working Capital Warrant is held by the Sponsor or a Permitted Transferee, as applicable, by surrendering the Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Fair Market Value”, as defined in this subsection 3.3.1(c) over the Warrant Price, by (y) the Fair Market Value. Solely for purposes of this subsection 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the Ordinary Shares for the ten (10) trading days ending on the third trading day prior to the date on which notice of exercise of the Warrant is sent to the Warrant Agent; or

 

(d)            as provided in Section 7.4 hereof.

 

3.3.2         Issuance of Ordinary Shares on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to subsection 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a book-entry position or certificate, as applicable, for the number of full Ordinary Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of Ordinary Shares as to which such Warrant shall not have been exercised. If fewer than all the Warrants evidenced by a Book-Entry Warrant Certificate are exercised, a notation shall be made to the records maintained by the Depositary, its nominee for each Book-Entry Warrant Certificate, or a Participant, as appropriate, evidencing the balance of the Warrants remaining after such exercise. Notwithstanding the foregoing, the Company shall not be obligated to issue any Ordinary Shares pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Securities Act with respect to the Ordinary Shares underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to the Company’s satisfying its obligations under Section 7.4. No Warrant shall be exercisable and the Company shall not be obligated to issue Ordinary Shares upon exercise of a Warrant unless the Ordinary Shares issuable upon such Warrant exercise have been registered, qualified or deemed to be exempt from registration or qualification under the securities laws of the state of residence of the Registered Holder of the Warrants, except pursuant to Section 7.4. In the event that the conditions in the two immediately preceding sentences are not satisfied with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant may have no value and expire worthless, in which case the purchaser of a Unit containing such Public Warrants shall have paid the full purchase price for the Unit solely for the Ordinary Shares underlying such Unit. In no event will the Company be required to net cash settle the Warrant exercise. The Company may require holders of Public Warrants to settle the Warrant on a “cashless basis” pursuant to subsection 3.3.1(b) and Section 7.4. If, by reason of any exercise of Warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in an Ordinary Share, the Company shall round down to the nearest whole number, the number of Ordinary Shares to be issued to such holder.

 

3.3.3        Valid Issuance. All Ordinary Shares issued upon the proper exercise of a Warrant in conformity with this Agreement and the Amended and Restated Memorandum and Articles of Association of the Company shall be validly issued as fully paid and non-assessable.

 

3.3.4        Date of Issuance. Upon proper exercise of a Warrant, the Company shall instruct the Warrant Agent in writing to make the necessary entries in the register of members of the Company in respect of the Ordinary Shares and to issue a certificate if requested by the holder of such Warrant. Each person in whose name any book-entry position in the register of members of the Company for Ordinary Shares is issued shall for all purposes be deemed to have become the holder of record of such Ordinary Shares on the date on which the Warrant, or book-entry position in the register of members of the Company representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the register of members of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such Ordinary Shares at the close of business on the next succeeding date on which the register of members or book-entry system are open.

 

 

3.3.5        Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (or such other amount as a holder may specify)(the “Maximum Percentage”) of the Ordinary Shares issued and outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by such person and its affiliates shall include the number of Ordinary Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Ordinary Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of issued and outstanding Ordinary Shares, the holder may rely on the number of issued and outstanding Ordinary Shares as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent setting forth the number of Ordinary Shares issued and outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of Ordinary Shares then issued and outstanding. In any case, the number of issued and outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of issued and outstanding Ordinary Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.

 

4.             Adjustments.

 

4.1           Share Capitalizations.

 

4.1.1        Split-Ups. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of issued and outstanding Ordinary Shares is increased by a capitalization of Ordinary Shares, or by a split of Ordinary Shares or other similar event, then, on the effective date of such share capitalization, split or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be increased in proportion to such increase in the issued and outstanding Ordinary Shares. A rights offering to holders of the Ordinary Shares entitling holders to purchase Ordinary Shares at a price less than the “Fair Market Value” (as defined below) shall be deemed a capitalization of a number of Ordinary Shares equal to the product of (i) the number of Ordinary Shares actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for Ordinary Shares) and (ii) one (1) minus the quotient of (x) the price per Ordinary Share paid in such rights offering divided by (y) the Fair Market Value. For purposes of this subsection 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for the Ordinary Shares, in determining the price payable for Ordinary Shares, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Fair Market Value” means the volume weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the first date on which the Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.

 

4.1.2       Extraordinary Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the Ordinary Shares on account of such Ordinary Shares (or other shares of the Company into which the Warrants are convertible), other than (a) as described in subsection 4.1.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the redemption rights of the holders of the Ordinary Shares in connection with a proposed initial Business Combination, (d) as a result of the repurchase of Ordinary Shares by the Company if a proposed Business Combination is presented to the shareholders of the Company for approval, (e) to satisfy the redemption rights of the holders of Ordinary Shares in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association to modify the substance or timing of the Company’s obligation to redeem 100% of the public shares if the Company does not complete the Business Combination within the period set forth in the Company’s amended and restated memorandum and articles of association or (f) in connection with the redemption of public shares upon the failure of the Company to complete its initial Business Combination and any subsequent distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each Ordinary Share in respect of such Extraordinary Dividend. For purposes of this subsection 4.1.2, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis, with the per share amounts of all other cash dividends and cash distributions paid on the Ordinary Shares during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of Ordinary Shares issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the offering price of the Units in the Offering).

 

 

4.2          Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of issued and outstanding Ordinary Shares is decreased by a consolidation, combination, reverse share split or redesignation of Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reverse share split, redesignation or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be decreased in proportion to such decrease in issued and outstanding Ordinary Shares.

 

4.3           Adjustments in Exercise Price.

 

4.3.1       Whenever the number of Ordinary Shares purchasable upon the exercise of the Warrants is adjusted, as provided in subsection 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of Ordinary Shares purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of Ordinary Shares so purchasable immediately thereafter.

 

4.3.2        If the Company issues additional Ordinary Shares or securities convertible into or exercisable or exchangeable for Ordinary Shares for capital raising purposes in connection with the closing of its initial Business Combination at an issue price or effective issue price of less than $9.20 per Ordinary Share, with such issue price or effective issue price to be determined in good faith by the Board (and in the case of any such issuance to the initial shareholders (as defined in the Prospectus) or their affiliates, without taking into account any founder shares held by such shareholders or their affiliates, as applicable, prior to such issuance)(the “New Issuance Price”), the Warrant Price shall be adjusted (to the nearest cent) to be equal to 115% of the New Issuance Price.

 

4.4           Replacement of Securities upon Reorganization, etc. In case of any redesignation or reorganization of the issued and outstanding Ordinary Shares (other than a change under subsections 4.1.1 or 4.1.2 or Section 4.2 hereof or that solely affects the par value of such Ordinary Shares), or in the case of any merger or consolidation of the Company with or into another entity or conversion of the Company as another entity (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any redesignation or reorganization of the issued and outstanding Ordinary Shares), or in the case of any sale or conveyance to another entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is liquidated or dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Ordinary Shares of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares or other securities or property (including cash) receivable upon such redesignation, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance” ); provided, however, that in connection with the closing of any such consolidation, merger, sale or conveyance, the successor or purchasing entity shall execute an amendment hereto with the Warrant Agent providing for delivery of such Alternative Issuance; provided, further, that (i) if the holders of the Ordinary Shares were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Ordinary Shares in such consolidation or merger that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Ordinary Shares (other than a tender, exchange or redemption offer made by the Company in connection with redemption rights held by shareholders of the Company as provided for in the Company’s amended and restated memorandum and articles of association or as a result of the repurchase of Ordinary Shares by the Company if a proposed initial Business Combination is presented to the shareholders of the Company for approval) under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor rule)) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act (or any successor rule)) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act (or any successor rule)) more than 50% of the issued and outstanding Ordinary Shares, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a shareholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the Ordinary Shares held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4; provided, further, that if less than 70% of the consideration receivable by the holders of the Ordinary Shares in the applicable event is payable in the form of shares in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within thirty (30) days following the public disclosure of the consummation of such applicable event by the Company pursuant to a Current Report on Form 8-K filed with the Commission, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference of (but in no event less than zero) (i) the Warrant Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) minus (B) the Black-Scholes Warrant Value (as defined below). The “Black-Scholes Warrant Value” means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black-Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (“Bloomberg”). For purposes of calculating such amount, (1) Section 6 of this Agreement shall be taken into account, (2) the price of each Ordinary Share shall be the volume weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event, (3) the assumed volatility shall be the 90 day volatility obtained from the HVT function on Bloomberg determined as of the trading day immediately prior to the day of the announcement of the applicable event, and (4) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. “Per Share Consideration” means (i) if the consideration paid to holders of the Ordinary Shares consists exclusively of cash, the amount of such cash per Ordinary Share, and (ii) in all other cases, the amount of cash per Ordinary Share, if any, plus the volume weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in Ordinary Shares covered by subsection 4.1.1, then such adjustment shall be made pursuant to subsection 4.1.1 or Sections 4.2, 4.3 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassification, reorganizations, mergers or consolidations, sales or other transfers. In no event will the Warrant Price be reduced to less than the par value per share issuable upon exercise of the Warrant.

 

 

4.5           Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of Ordinary Shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of Ordinary Shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.

 

4.6          No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional Ordinary Shares upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number of Ordinary Shares to be issued to such holder.

 

4.7           Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of Ordinary Shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.

 

4.8           Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment, provided, however, that under no circumstances shall the Warrants be adjusted pursuant to this Section 4.8 as a result of any issuance of securities in connection with the Business Combination. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.

 

4.9          No Adjustment. For the avoidance of doubt, no adjustment shall be made to the terms of the Warrants solely as a result of an adjustment to the conversion ratio of the Company’s Class B ordinary share (the “Class B Ordinary Share”) into Ordinary shares or the conversion of the Class B Ordinary Shares into Ordinary Shares, in each case, pursuant to the Company’s Charter, as amended from time to time.

 

5.             Transfer and Exchange of Warrants.

 

5.1          Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, in the case of certificated Warrants, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. In the case of certificated Warrants, the Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.

 

5.2          Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that except as otherwise provided herein or in any Book-Entry Warrant Certificate or Definitive Warrant Certificate, each Book-Entry Warrant Certificate and Definitive Warrant Certificate may be transferred only in whole and only to the Depositary, to another nominee of the Depositary, to a successor depository, or to a nominee of a successor depository; provided further, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend (as in the case of the Private Placement Warrants and the Working Capital Warrants), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.

 

5.3           Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which shall result in the issuance of a warrant certificate or book-entry position for a fraction of a warrant.

 

5.4           Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.

 

5.5           Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.

 

5.6           Transfer of Warrants. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the Unit in which such Warrant is included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of such Unit. Furthermore, each transfer of a Unit on the register relating to such Units shall operate also to transfer the Warrants included in such Unit. Notwithstanding the foregoing, the provisions of this Section 5.6 shall have no effect on any transfer of Warrants on and after the Detachment Date.

 

6.             Redemption.

 

6.1          Redemption. Subject to Section 6.4 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.2 below, at the price of $0.01 per Warrant (the “Redemption Price”), provided that the last sales price of the Ordinary Shares reported has been at least $18.00 per share (subject to adjustment in compliance with Section 4 hereof), on each of twenty (20) trading days within the thirty (30) trading-day period ending on the third trading day prior to the date on which notice of the redemption is given and provided that there is an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, and a current prospectus relating thereto, available throughout the 30-day Redemption Period (as defined in Section 6.2 below) or the Company has elected to require the exercise of the Warrants on a “cashless basis” pursuant to subsection 3.3.1; provided, however, that if and when the Public Warrants become redeemable by the Company, the Company may not exercise such redemption right if the issuance of Ordinary Shares upon exercise of the Public Warrants is not exempt from registration or qualification under applicable state blue sky laws or the Company is unable to effect such registration or qualification.

 

6.2           Date Fixed for, and Notice of, Redemption. In the event that the Company elects to redeem all of the Warrants, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than thirty (30) days prior to the Redemption Date (the “30-day Redemption Period”) to the Registered Holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice.

 

6.3          Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with subsection 3.3.1(b) of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.2 hereof and prior to the Redemption Date. In the event that the Company determines to require all holders of Warrants to exercise their Warrants on a “cashless basis” pursuant to subsection 3.3.1, the notice of redemption shall contain the information necessary to calculate the number of Ordinary Shares to be received upon exercise of the Warrants, including the “Fair Market Value” (as such term is defined in subsection 3.3.1(b) hereof) in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.

 

6.4           Exclusion of Private Placement Warrants and Working Capital Warrants. The Company agrees that the redemption rights provided in this Section 6 shall not apply to the Private Placement Warrants or the Working Capital Warrants if at the time of the redemption such Private Placement Warrants or the Working Capital Warrants continue to be held by the Sponsor or any Permitted Transferees, as applicable. However, once such Private Placement Warrants or Working Capital Warrants are transferred (other than to Permitted Transferees under Section 2.6), the Company may redeem the Private Placement Warrants and the Working Capital Warrants, provided that the criteria for redemption are met, including the opportunity of the holder of such Private Placement Warrants or the Working Capital Warrants to exercise the Private Placement Warrant and the Working Capital Warrants prior to redemption pursuant to Section 6.3. Private Placement Warrants and Working Capital Warrants that are transferred to persons other than Permitted Transferees shall upon such transfer cease to be Private Placement Warrants or Working Capital Warrants and shall become Public Warrants under this Agreement.

 

 

7.             Other Provisions Relating to Rights of Holders of Warrants.

 

7.1          No Rights as Shareholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.

 

7.2           Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.

 

7.3           Reservation of Ordinary Shares. The Company shall at all times reserve and keep available a number of its authorized but unissued Ordinary Shares that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.

 

7.4           Registration of Ordinary Shares; Cashless Exercise at Company’s Option.

 

7.4.1        Registration of the Ordinary Shares. The Company agrees that as soon as practicable, but in no event later than fifteen (15) Business Days after the closing of its initial Business Combination, it shall use its best efforts to file with the Commission a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Warrants. The Company shall use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration of the Warrants in accordance with the provisions of this Agreement. If any such registration statement has not been declared effective by the 60th Business Day following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the 61st Business Day after the closing of the Business Combination and ending upon such registration statement being declared effective by the Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis,” by exchanging the Warrants (in accordance with Section 3(a)(9) of the Securities Act (or any successor rule) or another exemption) for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (as defined below) by (y) the Fair Market Value. Solely for purposes of this subsection 7.4.1, “Fair Market Value” shall mean the volume weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of cashless exercise is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. In connection with the “cashless exercise” of a Public Warrant, the Company shall, upon request, provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a cashless basis in accordance with this subsection 7.4.1 is not required to be registered under the Securities Act and (ii) the Ordinary Shares issued upon such exercise shall be freely tradable under United States federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Securities Act (or any successor statute)) of the Company and, accordingly, shall not be required to bear a restrictive legend. Except as provided in subsection 7.4.2, for the avoidance of any doubt, unless and until all of the Warrants have been exercised or have expired, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this subsection 7.4.1.

 

7.4.2        Cashless Exercise at Company’s Option. If the Ordinary Shares are at the time of any exercise of a Warrant not listed on a national securities exchange such that it satisfies the definition of a “covered security” under Section 18(b)(1) of the Securities Act (or any successor statute), the Company may, at its option, (i) require holders of Public Warrants who exercise Public Warrants to exercise such Public Warrants on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act (or any successor statute) as described in subsection 7.4.1 and (ii) in the event the Company so elects, the Company shall not be required to file or maintain in effect a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Warrants, notwithstanding anything in this Agreement to the contrary. If the Company does not elect at the time of exercise to require a holder of Public Warrants who exercises Public Warrants to exercise such Public Warrants on a “cashless basis,” it agrees to use its best efforts to register or qualify for sale the Ordinary Shares issuable upon exercise of the Public Warrant under the blue sky laws of the state of residence of the exercising Public Warrant holder to the extent an exemption is not available.

 

8.             Concerning the Warrant Agent and Other Matters.

 

8.1           Payment of Taxes. The Company shall from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Ordinary Shares upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such Ordinary Shares.

 

 

8.2           Resignation, Consolidation, or Merger of Warrant Agent.

 

8.2.1        Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.

 

8.2.2        Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Ordinary Shares not later than the effective date of any such appointment.

 

8.2.3        Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.

 

8.3           Fees and Expenses of Warrant Agent.

 

8.3.1        Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.

 

8.3.2        Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.

 

8.4           Liability of Warrant Agent.

 

8.4.1        Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer, Chief Financial Officer, President, Executive Vice President, Vice President, Secretary or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.

 

8.4.2        Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct or bad faith.

 

8.4.3        Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Ordinary Share to be issued pursuant to this Agreement or any Warrant or as to whether any Ordinary Shares shall, when issued, be valid and fully paid and non-assessable.

 

8.5           Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of Ordinary Shares through the exercise of the Warrants.

 

 

8.6           Waiver. The Warrant Agent has no right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Warrant Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Warrant Agent hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.

 

9.             Miscellaneous Provisions.

 

9.1           Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.

 

9.2           Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:

 

Act II Global Acquisition Corp.
c/o Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, NY 10105
Attention: John Carroll

 

Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:

 

Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attention: Compliance Department

 

9.3           Applicable Law. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.

 

9.4           Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.

 

9.5           Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit such holder’s Warrant for inspection by the Warrant Agent.

 

9.6           Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

 

9.7           Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.

 

 

9.8           Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder (i) for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders, and (ii) to provide for the delivery of Alternative Issuance pursuant to Section 4.4. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period and any amendment to the terms of only the Private Placement Warrants or the Working Capital Warrants, shall require the vote or written consent of the Registered Holders of 65% of the then outstanding Public Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the Registered Holders.

 

9.9           Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

	ACT II GLOBAL ACQUISITION CORP.
	By:	/s/ John Carroll
	Name:	John Carroll
	Title:	Chief Executive Officer
	CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
	By:	/s/ Isaac Kagan
	Name:	Isaac Kagan
	Title:	Vice President

 

[Signature Page to Warrant Agreement]

 

 

EXHIBIT A

[Form of Warrant Certificate]

[FACE]

 

Number

 

Warrants

 

THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW

 

ACT II GLOBAL ACQUISITION CORP.
Incorporated Under the Laws of the Cayman Islands

 

CUSIP G0080J120

 

Warrant Certificate

 

This Warrant Certificate certifies that __________, or registered assigns, is the registered holder of warrant(s) evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase Class A ordinary shares, $0.0001 par value per share (“Ordinary Shares”), of Act II Global Acquisition Corp., a Cayman Islands exempted company (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and non-assessable Ordinary Shares as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Each whole Warrant is initially exercisable for one fully paid and non-assessable Ordinary Shares. No fractional shares will be issued upon exercise of any Warrant. If, upon the exercise of Warrants, a holder would be entitled to receive a fractional interest in an Ordinary Share, the Company will, upon exercise, round down to the nearest whole number of Ordinary Shares to be issued to the Warrant holder. The number of Ordinary Shares issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

 

The initial Exercise Price per Ordinary Share for any Warrant is equal to $11.50 per whole share. The Exercise Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

 

Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void.

 

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.

 

This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.

 

 

	ACT II GLOBAL ACQUISITION CORP.
	By:
	Name:
	Title:
	CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
	By:
	Name:
	Title:

 

 

 

[Form of Warrant Certificate]

[Reverse]

 

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive Ordinary Shares and are issued or to be issued pursuant to a Warrant Agreement dated as of April 25, 2019 (the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.

 

Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the Ordinary Shares to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the Ordinary Shares is current, except through “cashless exercise” as provided for in the Warrant Agreement.

 

The Warrant Agreement provides that upon the occurrence of certain events the number of Ordinary Shares issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number of Ordinary Shares to be issued to the holder of the Warrant.

 

Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

 

Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.

 

The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company.

 

 

 

Election to Purchase

(To Be Executed Upon Exercise of Warrant)

 

The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive Ordinary Shares and herewith tenders payment for such Ordinary Shares to the order of Act II Global Acquisition Corp. (the “Company”) in the amount of $______ in accordance with the terms hereof. The undersigned requests that a certificate for such Ordinary Shares be registered in the name of _______, whose address is _________ and that such Ordinary Shares be delivered to ________________ whose address is ________. If said number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of _________, whose address is ___________ and that such Warrant Certificate be delivered to __________, whose address is __________________.

 

In the event that the Warrant has been called for redemption by the Company pursuant to Section 6 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.3 of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1 (b) and Section 6.3 of the Warrant Agreement.

 

In the event that the Warrant is a Private Placement Warrant or a Working Capital Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.

 

In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 7.4 of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.

 

In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of Ordinary Shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive Ordinary Shares. If said number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of ____________, whose address is _______________ and that such Warrant Certificate be delivered to ______________ , whose address is __________.

 

[Signature Page Follows]

 

 

Date:______, 20
		(Signature)
		(Address)
		(Tax Identification Number)
Signature Guaranteed:

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 (OR ANY SUCCESSOR RULE)).

 

 

EXHIBIT B

LEGEND

 

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. IN ADDITION, SUBJECT TO ANY ADDITIONAL LIMITATIONS ON TRANSFER DESCRIBED IN THE LETTER AGREEMENT BY AND AMONG ACT II GLOBAL ACQUISITION CORP. (THE “COMPANY”), ACT II GLOBAL LLC AND THE OTHER PARTIES THERETO, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED PRIOR TO THE DATE THAT IS THIRTY (30) DAYS AFTER THE DATE UPON WHICH THE COMPANY COMPLETES ITS INITIAL BUSINESS COMBINATION (AS DEFINED IN SECTION 3 OF THE WARRANT AGREEMENT REFERRED TO HEREIN) EXCEPT TO A PERMITTED TRANSFEREE (AS DEFINED IN SECTION 2 OF THE WARRANT AGREEMENT) WHO AGREES IN WRITING WITH THE COMPANY TO BE SUBJECT TO SUCH TRANSFER PROVISIONS.

 

SECURITIES EVIDENCED BY THIS CERTIFICATE AND CLASS A ORDINARY SHARES OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.”

 

 

 

Exhibit 99.1

 

Act II Global Acquisition Corp. Announces Private Placement Transaction, Amendment to Share Purchase Agreement and Proposed Amendment to Outstanding Warrants

 

$75 million in private placement subscription agreements

 

Amends terms of share purchase to eliminate 10.8 million potentially dilutive securities and also retire 7.5 million public warrants

 

Net leverage of proposed combined company significantly improved to 2.0x from 3.0x

 

New York, NY and Chicago, IL February 12, 2020 – Act II Global Acquisition Corp. (NASDAQ: ACTT) (“Act II”), a special purpose acquisition company, announced today that it has entered into a private placement transaction, at a $10 per share benchmark, with a consortium of investors and accounts led by institutional investor Baron Small Cap Fund for gross proceeds of $75 million.

 

“We are excited to invest in Whole Earth Brands and provide capital so that the company can continue to innovate, expand distribution, and make strategic acquisitions,” remarked Cliff Greenberg, portfolio manager of Baron Small Cap Fund. “We believe the business has highly attractive fundamental characteristics and growth prospects and we are enthused to support Irwin Simon and the management team on their quest to build the next great natural foods and ingredients company.”

 

“We appreciate the support of our new PIPE investors and believe these blue-chip, long-term focused, institutional shareholders will help strengthen Whole Earth Brands for many years to come,” commented Irwin Simon, Executive Chairman of Act II. “We remain excited about the opportunity, creating a global platform of healthy, natural and no-sugar-added foods. We believe today’s private placement and transaction amendments increase deal certainty and significantly improve the financial profile of the business and value proposition to all of our shareholders.”

 

In addition, the Company today announced an amendment to the terms of its previously announced proposed share purchase agreement with certain entities related to the business and operations of Merisant Company (“Merisant”) and MAFCO Worldwide LLC (“MAFCO”). Under the terms of the proposed amendment:

 

Substantial Reduction in Dilutive Securities

 

-

Following the closing, the Sellers will no longer receive the previously agreed 1.0 million shares in escrow

-

the Sellers will also forfeit their contingent right to any additional earnout consideration, which had totaled up to approximately 2.7 million shares;

-

Act II Global LLC (the “Sponsor”) will forfeit 3.0 million Class B ordinary shares;

-

61% of the Sponsor’s private placement warrants will be eliminated at the closing of the business combination;

-

as a condition to the parties’ obligations to complete the private placement, Act II will amend all other publicly-held warrants so that each such warrant holder will receive, following the closing of the business combination a cash payment of $0.75 per warrant (with the Sponsor and the private placement investors waiving the right to any such cash payment) and the warrant will be exercisable for one-half of a Class A ordinary share for an exercise price of $5.75 for each one-half share ($11.50 per whole share), effectively eliminating 50% of the dilution from the public warrants.

 

 

Improved Leverage Profile

 

-

Net leverage following the consummation of the private placement and warrant amendment is expected to be approximately 2.0x, as opposed to 3.0x as previously announced.

 

The closing of the private placement is conditioned on the substantially concurrent closing of the business combination.

 

Immediately following the closing of the business combination and assuming no redemptions, we expect 46.0 million shares of Whole Earth Brands, Inc. common stock, inclusive of those shares issuable to the private placement investors, to be issued and outstanding.

 

Contacts

Katie Turner / Cory Ziskind

ICR

646-277-1200

[email protected]; [email protected]

 

About Act II Global Acquisition Corp.

 

Act II is a blank check company formed for the purpose of effecting a merger, share exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses that completed its initial public offering in April 2019. Act II focuses on companies in the “better for you” sectors, such as consumer packaged goods and other consumables as well as hospitality, including restaurants. The Company is led by 25-year organic and natural products industry visionary Irwin D. Simon, Executive Chairman.

 

About Whole Earth Brands

 

Following the closing, the combined company will be rebranded as Whole Earth Brands. Whole Earth Brands will look to expand its branded products platform through investment opportunities in the natural alternatives and clean label categories across the global consumer product industry. Over time, Whole Earth Brands will look to become a portfolio of brands that Open a World of Goodness™ to consumers and their families. Whole Earth Brands expects to list on the NASDAQ stock exchange in connection with the closing. www.wholeearthbrands.com

 

About Baron Small Cap Fund

 

Baron Small Cap Fund is part of the Baron Funds mutual fund complex. Baron Funds include 17 no-load mutual funds. More information about Baron Funds is available by calling (800) 99-BARON or by visiting www.baronfunds.com. The adviser to Baron Funds is BAMCO, Inc., a subsidiary of Baron Capital Group.

 

 

Forward Looking Statements

 

This press release includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements such as projected financial information may be identified by the use of words such as “forecast,” “intend,” “seek,” “target,” “anticipate,” “believe,” “will,” “expect,” “estimate,” “plan,” “outlook,” and “project” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Such forward-looking statements include statements about our beliefs and expectations contained herein. Such forward-looking statements with respect to strategies, prospects and other aspects of the businesses of Merisant, MAFCO, Act II or the combined company after completion of the business combination are based on current expectations that are subject to risks and uncertainties. A number of factors could cause actual results or outcomes to differ materially from those expressed or implied by such forward-looking statements.

 

These factors include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the definitive agreement with respect to the business combination; (2) the outcome of any legal proceedings that may be instituted against Act II, the combined company or others following the announcement of the business combination and the definitive agreement with respect thereto; (3) the inability to complete the business combination due to the failure to obtain approval of the shareholders of Act II, to obtain financing to complete the business combination or to satisfy conditions to closing in the definitive agreements with respect to the business combination; (4) changes to the proposed structure of the business combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the business combination; (5) the ability to comply with NASDAQ listing standards following the consummation of the business combination; (6) the risk that the business combination disrupts current plans and operations of Merisant and/or MAFCO as a result of the announcement and consummation of the business combination; (7) 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 suppliers, obtain adequate supply of products and retain its management and key employees; (8) costs related to the business combination; (9) changes in applicable laws or regulations; (10) the possibility that Merisant, MAFCO or the combined company may be adversely affected by other economic, business, and/or competitive factors; (11) the inability to achieve estimates of expenses and profitability; (12) the impact of foreign currency exchange rates and interest rate fluctuations on results; and (13) other risks and uncertainties indicated from time to time in the final prospectus of Act II, including those under “Risk Factors” therein, and other documents filed (or furnished) or to be filed (or furnished) with the Securities and Exchange Commission by Act II. You are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Merisant, MAFCO and Act II undertake no commitment to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.

 

Additional Information and Where to Find It

 

In connection with the proposed business combination, Act II intends to file with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-4 and will mail the definitive proxy statement/prospectus and other relevant documentation to Act II shareholders. This press release does not contain all the information that should be considered concerning the proposed transaction. It is not intended to form the basis of any investment decision or any other decision with respect to the business combination. This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of the federal securities laws.

 

 

Act II shareholders and other interested persons are advised to read, when available, the preliminary proxy statement and any amendments thereto, and the definitive proxy statement in connection with Act II’s solicitation of proxies for the special meeting to be held to approve the proposed transaction, because these materials will contain important information about Merisant Company (“Merisant”), MAFCO Worldwide LLC (“Mafco”) and Act II and the proposed transaction.

 

The definitive proxy statement will be mailed to Act II shareholders as of a record date to be established for voting on the business combination when it becomes available. Shareholders will also be able to obtain a copy of the preliminary proxy statement and definitive proxy statement once they are available, without charge, at the SEC’s website at www.sec.gov or by directing a request to Act II at 745 5th Avenue, New York, NY 10151.

 

Participants in the Solicitation

 

Act II, Merisant, Mafco and their respective directors and officers and representatives or affiliates may be deemed to be participants in the solicitation of proxies of Act II shareholders in connection with the business combination. Act II shareholders and other interested persons may obtain, without charge, more detailed information regarding the directors and officers of Act II in the final prospectus of Act II, which was filed with the SEC on April 29, 2019. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to Act II shareholders in connection with the business combination will be set forth in the proxy statement for the business combination when available. Additional information regarding the interests of participants in the solicitation of proxies in connection with the business combination will be included in the proxy statement that Act II intends to file with the SEC and other documents furnished or filed with the SEC by Act II.

 

 

 

Exhibit 99.2

 

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” Investor Presentation February 2020

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” I. Executive Summary 5 II. Branded CPG and Flavors & Ingredients Business Overview 11 III. Growth Plan 19 IV. Financial Overview 29 V. Transaction Detail 36 TABLE OF CONTENTS [ 1 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” DISCLAIMER About this Presentation This presentation (together with any accompanying oral or written communications, this “Presentation”) is for informational p urp oses only and does not constitute an offer to sell or the solicitation of an offer to purchase any securities of Act II Global Acquisition Corp. (“Act II”), MAFCO Worldwide LLC (“MAFC O”) and Merisant Company (together with MAFCO, the “Targets”) or any other person. This Presentation has been prepared to provide interested parties with information in connection with their own ev aluation with respect to the proposed business combination of Act II and the Targets, as contemplated in certain definitive transaction documents, and for no other purpose. The information co nta ined herein should not be relied on and does not purport to be all - inclusive. The data contained herein is derived from various internal and external sources. No representation is made as to t he reasonableness of the assumptions made within or the accuracy or completeness of any projections, modeling or any other information contained herein. All levels, prices and spreads are histo ric al and do not represent current market levels, prices or spreads, some or all of which may have changed since the issuance of this document. Any data on past performance, modeling contained h ere in is not an indication as to future performance. Targets and Act II assume no obligation to update the information in this Presentation. Neither Targets nor Act II or any of their repres ent atives or affiliates accepts any liability whatsoever for any losses arising from the use of this Presentation or reliance on the information contained herein. Nothing herein shall be deemed to con stitute investment, legal, tax, financial, accounting or other advice. None of Act II, Targets or their respective affiliates or representatives makes any express or implied representation or warr ant y as to the accuracy or completeness of the information contained in this Presentation in connection with any further evaluation of Act II, Targets, the business combination or a future potentia l t ransaction involving the purchase of securities of Act II. Neither this presentation nor anything contained herein shall form the basis for any contractual or other commitment or obligation in rela tio n to the purchase or sale of any securities whatsoever, and the recipient disclaims any such representation or warranty. Use of Projections This Presentation may contain financial forecasts, including with respect to Targets’ estimated net sales, gross profit, gros s m argin, adjusted EBITDA, free cash flow and free cash flow conversion. Neither Targets’ independent auditors nor the independent registered public accounting firm of Act II, audited, reviewed, com pil ed, or performed any procedures with respect to the projections for the purpose of their inclusion in this Presentation, and accordingly, neither of them expressed an opinion or provided an y o ther form of assurance with respect thereto for the purpose of this Presentation. These projections should not be relied upon as being necessarily indicative of future results. In this Presentation, certain of the above - mentioned estimated information has been repeated (subject to the qualifications pres ented herein), for purposes of providing comparisons with historical data. The assumptions and estimates underlying the prospective financial information are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the prospect ive financial information. Accordingly, there can be no assurance that the prospective results are indicative of the future performance of Targets, Act II or the combined company or that actual re sul ts will not differ materially from those presented in the prospective financial information. Inclusion of the prospective financial information in this Presentation should not be regarded as a re pre sentation by any person that the results contained in the prospective financial information will be achieved. [ 2 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” DISCLAIMER (CONT’D) Forward - Looking Statements This Presentation includes “forward - looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward - looking statements such as projected financial information may be identified by the use of words such as “forecast,” “intend,” “seek, ” “ target,” “anticipate,” “believe,” “will,” “expect,” “estimate,” “plan,” “outlook,” and “project” and other similar expressions that predict or indicate future events or trends or that are n ot statements of historical matters. Such forward - looking statements include statements about our beliefs and expectations and the estimated financial information and other projections contained he rein. Such forward - looking statements with respect to financial performance, strategies, prospects and other aspects of the businesses of Targets, Act II or the combined company after compl eti on of the business combination are based on current expectations that are subject to risks and uncertainties. A number of factors could cause actual results or outcomes to differ materially fro m those expressed or implied by such forward - looking statements. These factors include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give ri se to the termination of negotiations and any subsequent definitive agreements with respect to the business combination; (2) the possibility that the terms and conditions set forth in any defin iti ve agreements with respect to the business combination may differ materially from the expected terms on which this information is based; (3) the outcome of any legal proceedings that may be i nst ituted against Act II, the combined company or others following the announcement of the business combination and any definitive agreements with respect thereto; (4) the inability to complet e t he business combination due to the failure to obtain approval of the shareholders of Act II, to obtain financing to complete the business combination or to satisfy conditions to closing in t he definitive agreements with respect to the business combination; (5) changes to the proposed structure of the business combination that may be required or appropriate as a result of applicable l aws or regulations or as a condition to obtaining regulatory approval of the business combination; (6) the ability to comply with NASDAQ listing standards following the consummation of the business com bination; (7) the risk that the business combination disrupts current plans and operations of Targets as a result of the announcement and consummation of the business combination; (8) the ab ility 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 manag e g rowth profitably, maintain relationships with suppliers, obtain adequate supply of products and retain its management and key employees; (9) costs related to the business combination ; ( 10) changes in applicable laws or regulations; (11) the possibility that Targets or the combined company may be adversely affected by other economic, business, and/or competitive factors; (12) the inability to achieve estimates of expenses and profitability; (13) the impact of foreign currency exchange rates and interest rate fluctuations on results; and (14) other risks and uncert ain ties indicated from time to time in the final prospectus of Act II, including those under “Risk Factors” therein, and other documents filed (or furnished) or to be filed (or furnished) with the Se curities and Exchange Commission by Act II. You are cautioned not to place undue reliance upon any forward - looking statements, which speak only as of the date made. Targets and Act II undertake no commitment to update or revise the forward - looking statements, whether as a result of new information, future events or otherwise, except as required by law. Industry and Market Data In this Presentation, Targets and Act II rely on and refer to information and statistics regarding the sectors in which it co mpe tes and other industry data. Targets and Act II obtained this information and statistics from third - party sources, including reports by market research firms. Targets and Act II have supplem ented this information where necessary with information from its own internal estimates, taking into account publicly available information about other industry participants and its manageme nt’ s best view as to information that is not publicly available. Neither Targets nor Act II has independently verified the accuracy or completeness of any such third - party information. Use of Non - GAAP Financial Measures This Presentation includes non - GAAP financial measures which do not conform to SEC Regulation S - X in that it includes financial information (including adjusted EBITDA, PF adjusted EBITDA, free cash flow and free cash flow conversion) not derived in accordance with U.S. GAAP. Accordingly, such information and data wil l b e adjusted and presented differently in Act II’s proxy statement/prospectus to be filed with the SEC to solicit shareholder approval of the proposed transaction. Targets and Act II be lieve that the presentation of non - GAAP measures provides an additional tool for investors to use in evaluating ongoing operating results and trends. You should review Targets’ audited a nd interim financial statements, which will be presented in Act II’s proxy statement/prospectus to be filed with the SEC, and not rely on any single financial measure to evaluate their respective busi nes ses. Other companies may calculate non - GAAP measures differently, and therefore Targets’ respective non - GAAP measures may not be directly comparable to similarly titled measures of other companies. Not all of the information necessary for a quantitative reconciliation of these forward - looking non - GAAP measures to the most directly comparable financial measures is ava ilable without unreasonable efforts at this time. Specifically, neither Act II nor Targets provide such quantitative reconciliations due to the inherent difficulty in forecasting and quanti fyi ng certain amounts that are necessary for such reconciliations, including percentage of sales attributable to innovation and all constant currency metrics. [ 3 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” DISCLAIMER (CONT’D) Additional Information In connection with the proposed business combination, Act II intends to file with the SEC a Registration Statement on Form S - 4 a nd will mail the definitive proxy statement/prospectus and other relevant documentation to Act II shareholders. This Presentation does not contain all the information that should be consider ed concerning the proposed transaction. It is not intended to form the basis of any investment decision or any other decision with respect to the business combination. This communication shall not co nstitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unl awful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of the fe der al securities laws. Act II intends to file a Registration Statement on Form S - 4 and mail the proxy statement/prospectus and other relevant documents to its security holders in connection with the pro posed transaction. Act II shareholders and other interested persons are advised to read, when available, the preliminary proxy statement and any am endments thereto, and the definitive proxy statement in connection with Act II’s solicitation of proxies for the special meeting to be held to approve the proposed transaction, beca use these materials will contain important information about Targets and Act II and the proposed transactions. The definitive proxy statement will be mailed to Act II shareholders as of a record da te to be established for voting on the business combination when it becomes available. Shareholders will also be able to obtain a copy of the preliminary proxy statement and definitive proxy statement once they a re available, without charge, at the SEC’s website at www.sec.gov or by directing a request to Act II at 1345 Avenue of the Americas 11th Fl. New York, NY 10105. This Presentation shall not cons tit ute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the business combination. Please call the SEC at 1 - 800 - SEC - 0330 or visit the SEC’s website for f urther information on its public reference room. Participants in the Solicitation Act II, Targets and their respective directors and officers and representatives or affiliates may be deemed participants in t he solicitation of proxies of Act II shareholders in connection with the business combination. Act II shareholders and other interested persons may obtain, without charge, more detailed information reg arding the directors and officers of Act II in the final prospectus of Act II, which was filed with the SEC on April 29, 2019. Information regarding the persons who may, under SEC rules, be dee med participants in the solicitation of proxies to Act II shareholders in connection with the business combination will be set forth in the proxy statement for the business combination when available . A dditional information regarding the interests of participants in the solicitation of proxies in connection with the business combination will be included in the proxy statement that Act II inten ds to file with the SEC and other documents furnished or filed with the SEC by Act II. By accepting this Presentation, you acknowledge and agree to all of the above. [ 4 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” I. Executive Summary

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” WHOLE EARTH BRANDS LEADERSHIP TEAM Chairman ▪ More than 30 years of experience in the consumer - facing health and wellness sector ▪ Industry visionary, driver of global Natural and organic industry growth ▪ Significant track record of building shareholder value through M&A, having completed more than 50 acquisitions Irwin D. Simon Albert Manzone ▪ CEO of Flavors Holdings since February 2016 ▪ More than 25 years of strategic and operational experience in consumer products industry ▪ Previously worked at McKinsey & Co. as well as various blue chip companies in food & beverage (PepsiCo, W.M. Wrigley Jr. Company) CEO ▪ President and COO of Mafco; joined company in January 2014 ▪ 15 years of experience in President, COO and CFO roles, strategic planning and restructuring of business operations ▪ Previously worked at MacAndrews & Forbes, Vestar Capital Partners, Bear Stearns and served in the U.S Marines Luke Bailey President of Flavors & Ingredients CFO ▪ 15 years of experience in finance leadership roles ▪ Global Consumer Goods experience in China, Southeast Asia, Latin America and Europe ▪ Previously worked at Multi - National Companies including Reckitt Benckiser, Mead Johnson Nutrition, Abbott Laboratories and E&Y Andy Rusie [ 6 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” Act II announced transaction on December 19, 2019 Subsequently raised $75mm of PIPE commitment with a modified transaction structure which significantly reduces the number, and impact, of all potentially dilutive securities Transaction designed to address 50% of currently outstanding public warrants SUMMARY ▪ Act II is acquiring a longtime privately - held business, which was historically managed to maximize organic cash flow ▪ The public company led by Irwin Simon, team, and existing management intends to position Whole Earth Brands to reinvest the company’s significant free cash flow for growth ▪ The worldwide shift away from sugar to natural non - sugar sweeteners and products is a mega trend upon which Whole Earth Brands is expected to grow ▪ The Targets are currently at an inflection point as a company, in a similar position to Hain Celestial in the 1990’s as it looked to capitalize on a rapidly evolving landscape [ 7 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” INTRODUCTION TO WHOLE EARTH BRANDS We expect Whole Earth Brands will take a diversified, dual - prong approach to attacking the market opportunity for Natural and sugar - free products BRANDS Branded CPG ( Merisant ) Flavors & Ingredients ( Mafco ) Leading branded sugar replacement and no sugar added / reduced sugar CPG adjacencies (including sugar - free snacks ) 100 - yr old trusted natural flavors & ingredients supplier focused on clean label products and innovation Licorice - Based Derivatives Licorice Extracts Whole Earth Brands is expected to be a global platform of branded products and ingredients focused on the consumer transition towards Natural alternatives and clean label products Act II was formed to create an attractive on - trend vehicle in the Consumer Packaged Goods (CPG) space and we believe Whole Earth Brands will enable us to execute this strategy ® ® ® ® ™ [ 8 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” COMPELLING INVESTMENT THESIS Proven Global Platform Innovation and Distribution Growth Consumer Tastes Driven by Health & Wellness “Platinum” standard systems and global infrastructure drive integration synergies Global reach serving 100+ countries and long - standing blue - chip customer relationships for sourcing opportunities Stable free cash flow supports M&A financing Experienced management team with track record of successful integration Global secular consumer shift away from sugar provides multi - year tailwinds Growing demand for clean labels and Natural ingredients, driven by consumers, retailers, and CPG companies Western consumers shifting to Natural products and consumers in the developing world are adopting “Original” products (e.g., Equal and Canderel ) Large opportunities in plant - based CPG market Demonstrated ability to introduce new products and drive sales to new consumers in new geographies New product pipeline across both business units Leverage existing distribution presence for new products (like Whole Earth, baking solutions, and adjacencies) as well as Original products (like Equal Flavors and Functionals ) Free cash flow available to support new product initiatives Whole Earth Brands will be positioned to realize improved organic growth and act as a platform for M&A Act II and existing management intend to execute on strategies honed at Hain Celestial, PepsiCo, and other successful CPG companies to drive value creation [ 9 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” OVERVIEW OF WHOLE EARTH BRANDS PRODUCT PORTFOLIO Products Sweeteners Adjacencies Ingredients Brands Common Uses Focus for the Future Sugar - substitutes and Natural sweeteners Natural, no sugar added / reduced sugar CPG foods (e.g., jams , chocolates, granola, bars, wafers) Coffee, tea, baking Flavor house masking solutions , tobacco, confection, various CPG Licorice extracts, licorice derivatives used for masking flavors and as a moistening agent Geographic expansion, sugar laden categories Natural plant - based sweeteners, baking sugar replacement, flavors, key international markets applications, new products, monetizing advantaged cost base Snacking, breakfast, confection x Anti - sugar / no sugar added x Rising obesity / weight - loss x Keto x Plant - based Strong Fit With Health Trends x Natural : Stevia , Monk Fruit , Erythritol , Xylitol , Allulose x Clean label products x Guilt - free cravings ® ® ® ® ® ® ® ® ™ ™ ® [ 10 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” II. Branded CPG and Flavors & Ingredients Business Overview

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” Global leader in sugar - free tabletop sweetener category which is rapidly evolving into new high quality, competitive product lines Leading global manufacturer of N atural 1 licorice extract and licorice derivative products Sweeteners – Natural & Functional Benefits BRANDED CPG AND FLAVORS & INGREDIENTS AT A GLANCE Source: Company Materials , AC Nielsen, Management Estimates 1. Recognized as “Natural” in largest markets such as U.S. Branded CPG Flavors & Ingredients Leading Player in Licorice Extracts and Derivatives #1 / # 2 Rank in Sugar - Free Sweeteners Across Key Global Markets Adjacencies in sugar - laden categories (e.g., chocolates, jams, cereals, beverages) 100+ year old trusted supplier with valuable relationships in the CPG industry Diversified portfolio driven by consumer preferences for Natural, plant - based, non - sugar products Extracts: used in confection and tobacco products Derivatives: used as a functional ingredient in end markets including CPG / OTC Pharma (flavor masking) and Personal Care (moistening) ® ® ® ® ™ [ 12 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” GLOBAL INFRASTRUCTURE IN PLACE TO ACCELERATE GROWTH Source: Company Materials ▪ Operates six manufacturing facilities and collaborates with 20 co - manufacturers across the globe ▪ Strong and scalable distribution chain utilizing third party logistics companies and distributors for trucking and warehousing ▪ Servicing 100+ countries ▪ Capabilities across sweetener ingredient types ▪ Unique supply chain at point of origin for licorice ▪ Expertise to deliver specific tastes for local markets ▪ No customer represents >~8% of total net sales ▪ Potential to penetrate new large and growing markets to address the effects of a “western diet ” Manufacturing facilities Co - manufacturing facilities Expansive global presence creates a unique platform opportunity (versus regionally - focused businesses) Whole Earth Brands footprint [ 13 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” POSITIVE MACRO TRENDS SUPPORT GROWTH ▪ CPG market is large and growing, driven by demand for taste solutions in response to increased innovation in packaged food ▪ Growing exposure to beauty and personal care markets, a highly attractive category with substantial growth ▪ Large presence in North America, while there are strong growth opportunities in developing countries 39% 61% 2019 Preliminary $378 $518 $436 $590 United States Western Europe $86 $94 $104 $110 United States Western Europe 2019 Preliminary Net Sales By Industry 2017A Packaged Food ($ in bn , ’17 - ’22E CAGR) 2022E Beauty and Personal Care ($ in bn , ’17 - ’22E CAGR) Net Sales Geographic Mix North America Rest of World A B C 2017A 2022E 2017A 2022E 2017A 2022E Source: Company Materials , AC Nielsen, Management Estimates 1. Consumer - Packaged Goods include all Branded CPG ( Merisant ) net sales plus net sales of Flavors & Ingredients products to CPG, OTC and confections end markets. $272 – 275mm Consumer Packaged Goods 1 74% Tobacco 18% Beauty & Personal Care 8% [ 14 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” 3.2% 2013A – 2018A Natural and Original Sugar Substitutes Are Relevant Across the World Given Obesity and Diabetes Epidemic $366 $382 $402 $426 $455 $489 2016A 2017A 2018E 2019E 2020E 2021E STRONG GLOBAL TAILWINDS SUPPORTING GROWTH OF LEADING BRANDS Source: Company Materials, Management Estimates, Euromonitor , Industry Research, LMC International 1. Data per Technavio “Global Sweetener Market 2017 – 2021” report published 9/28/2017; Stevia used in all end markets, including tabletop, food, bev erage and pharmaceuticals 2. Data per LMC International 3. AC Nielsen retail data for 2018 4. UK data from 2018 Dig Insights study. U.S. and France data from 2015 Ipsos Reports. Australia data from 2018 Colmar Brunton report. South Africa data from TNS report Branded CPG: Highly Recognized and Defensible Portfolio of Leading Brands Demand For Original in the Developing World 2 UK France Australia South Africa U.S. Rank 3 #1 #1 #1 #1 #4 Brand Awareness 4 8 1 % 9 4 % 8 0 % 9 5 % 90 % 87% Leading Brand Portfolio Positioned to Benefit from Future Growth Global Stevia Sugar - Free Original Sweetener Volume CAGR in Developing World ($ in millions) Flavors & Ingredients: Preferred Supplier for a Global, Blue Chip Customer Base Continued Shift to Natural in Developed World 1 Net Sales ( $mm ) ~ $ 1 05 $ 5 – 20 Ma rk e t Pr ese n c e G lobal R eg i ona l K e y End M arkets All manufactured licorice products Indi v idual produ c ts Produ c t Offering All licorice products E x tra c ts & deri v at i v es sepa r a t e ly Produ c t A pplications / D e v e l o p me nt Full L i m it e d Others ® ® ® ® ® ® [ 15 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” LONG - STANDING RELATIONSHIPS WITH CUSTOMERS AND EXPOSURE TO GROWING END MARKETS Continue to Grow in Core Accounts… ▪ Several top 10 customers have purchased licorice products for 50+ years ▪ Strong customer relationships driven by: − Ability to maintain industry leading supply security and availability − Manufacturing capacity and ability to consistently meet individual customer’s flavor, chemical and physical requirements Key North American Customers …And Continue to Increase Accounts with Exposure to High Growth Categories Tobacco > 20+ years > 20+ years > 10 years Food & Beverage > 15 years > 10 years Company Length of Relationship Consumer Packaged Goods Over - The - Counter Beauty & Personal Care Source: Company Materials ( Mucinex ) (Flintstones) ( Phosphogliv ) Sells to: [ 16 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” ▪ Unique positioning strengthens cash flow profile Branded CPG protected by strong brand equity reflected in CPG - like margin Flavors & Ingredients protected by long - term customer relationships and integrated supply chain ▪ Asset - light business model and low capital intensity PLATFORM WITH HIGHLY ATTRACTIVE FREE CASH FLOW OUTLOOK Source: Company Materials Notes: Projections exclude financial impact of potential future acquisitions; 2020E - 2021E includes $1.75mm of assumed incremental public company costs; 2020E projections are based on the mid - point of the range which can be referenced on page 32 1. Free Cash Flow calculated as Adj . EBITDA, less CapEx , less Whole Earth food services chain partnership investment 2. 2019E - 2020E PF Adj. EBITDA represents EBITDA adjusted for certain non - cash and one - time items, as well as pro forma effects of restructuring programs ending in 2021; for historical calculations of PF Adj. EBITDA see page 41 Free Cash Flow 1 and Adjusted EBITDA Margin 2 Free cash flow profile is expected to provide flexibility to drive growth through R&D, brand investment, and M&A ($ in mm) Net Sales $272 – 275 $290 - 305 Adj. EBITDA 2 $62 - 64 $67 - 71 Guidance Range FCF 1 guidance range Midpoint of Guidance Range Adj. EBITDA Margin 2 $ 55 - 57 $ 58 - 62 23.0 % 23.2 % 2019 Preliminary 2020E Range [ 17 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” GLOBAL PLATFORM IN PLACE TO DRIVE GROWTH Global Platform to Support Growth Strong Industry Tailwinds and Innovation Platform Acquisition Capabilities Combined With Sponsor Track Record Experienced Operating Team Global Footprint, Distribution, Manufacturing and Sourcing Network [ 18 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” III. Growth Plan

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” MULTIPLE LEVERS TO DRIVE FUTURE GROWTH AND VALUE ▪ Support continued growth in developing economies and entrance into new geographies 3 ▪ Continue to drive product innovation (Whole Earth, Pure Via, baking) and select product extensions (e.g., jams, chocolate, granola, etc .) 1 ▪ Grow North America through N atural, innovation, and distribution 2 ▪ Supplement organic growth with targeted tuck - in M&A 4 Source: Company Materials [ 20 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” CONTINUE TO DRIVE PRODUCT INNOVATION AND SELECT PRODUCT EXTENSIONS Innovation is a Key Driver of Sales 15% 17% 17% 85% 83% 83% 2018 2019 2020 Potential Areas of Future Innovation Core Innovation Whole Earth and Pure Via Equal and Canderel Snacks and CPG Adjacencies Jams Chocolates Seasonals , Equal “ Zero” 4 Functionals (Vitamin C / Caffeine) Confection / Sweets Natural Creamers Forms (Liquid) Representative Products Brand 1 CBD 5 Source: Company materials, Nielsen – Moving Annual Total 2019 1. Represents 2019 Preliminary results 2. Primarily in EMEA, excluding Western Europe 3. Based on Nielsen US Food channel YTD through 12/26/19 4. 2020 planned product launch 5. Represents CBD opportunities that comply with all applicable laws ▪ Under the Canderel brand, total adjacencies net sales grew from $1.7mm in 2017 to $4.7mm in 2019 1 ▪ Under the Canderel brand, Sugarly was launched in 2016 and grew to over $2mm net sales by 2019 1 , driven by Western Europe distribution Recent Launch of Sugarly Recent Launches Driven by Distribution and Execution Erythritol Baking / Allulose 4 Innovation for Large Baking Opportunity ▪ Opportunity to capture the 40% of US consumers who use sugar weekly for baking and cooking ▪ Bags of Natural sweeteners (for baking) is growing 11.6% YTD 3 in the market, significantly faster than Natural sugar substitutes overall (5.7% 3 ) ▪ Category validated by a number of small companies with limited brand recognition ▪ Whole Earth offerings, including Erythritol (Sept.’19), Allulose (1H’20), Monk Fruit (1H’20), positions the company to capitalize on this trend − Erythritol category growing > 100% 3 [ 21 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” 1.9% 67.0% $213.9 $227.3 $254.3 $266.5 09 / 2016 09 / 2017 09 / 2018 09 / 2019 WHOLE EARTH IS WELL POSITIONED TO DRIVE INNOVATION AND GROW DISTRIBUTION IN FAST - GROWING NATURAL SWEETENER SEGMENT Whole Earth Brand Strategy ▪ Natural sweetener (mostly Stevia) is a growing category ▪ Starbucks launch partnership has helped increase brand exposure ▪ Whole Earth is winning in the US grocery channel with only 22% ACV distribution in multi - channel (“ xAOC ”) 2 Sizable revenue gains reflect improving velocity / turns ▪ Large opportunity to drive growth xAOC ACV : 22% 2 ( vs. 75 % for Stevia and 69% for Aspartame) New channels: prove brand at Grocery; then Mass and Club expected to follow E - commerce platform satisfying demand until distribution improves ▪ Growth supported by cost - effective marketing and promotional spend to drive awareness, trial and “buzz” Paid social and increased online presence Influencer, brand integrations, s ponsored events (ex. keto meet ups) ▪ Target audiences include: sugar - adverse, millennials, keto, health - focused / “better for you”, “no sugar added” ▪ Long runway of growth opportunities in SKU count and penetration within large retailers, grocers and club stores (e.g. only 1 SKU currently in Walmart; penetration at Costco is only ~15%) Source: Company Materials, Nielsen 1. U.S. Food sales growth over past 13 weeks as of 12/26/19 2. Nielsen xAOC as of 12/31/2019 3. Nielsen data as of 10/2/2019 US Stevia Market is Growing 3 Whole Earth is The Fastest Growing Brand At Grocery Stores Large Opportunity For US Sales Gains Whole Earth Growth as it Gains Scale ($ in millions) ($ in millions) (Market leader) Grocery store sales growth over past 13 weeks 1 1 $266.5 $70.0 Stevia at Grocery Stevia at Coffee Houses 2020E net sales of $16mm Currently 22% ACV distribution 2 ® ® $5.1 $9.2 2018A 2019 Preliminary [ 22 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” 0.6% (0.8)% 4.0% 8.8% L52 Weeks L26 Weeks L13 Weeks L4 Weeks Merisant Cargill Heartland Cumberland 9.8 % 0.0 % 1.0 % (3.3)% 9.9 % (2.5)% 1.5 % (7.5)% 10.6 % (1.3)% 0.2 % (7.8)% 25.2 % 1.7 % (0.7)% (9.2)% GROW NORTH AMERICA THROUGH INNOVATION IN NATURAL AND ORIGINAL SWEETENERS 2 Source: Company Materials 1. Based on US Food channel Nielsen data week ended 10/26/2019 2. 2020 product launch 3. Based on US Food channel Nielsen data week ended 11/23/2019 L52 Weeks L26 Weeks L13 Weeks L4 Weeks Whole Earth Growth | % YoY Sales Growth 1 Equal Innovation | % YoY Sales Growth 3 Brand Comparison | % YoY Sales Growth 1 North American Branded CPG growth driven by… 60.7% 70.1% 64.7% 99.1% L52 Weeks L26 Weeks L13 Weeks L4 Weeks Reflects new innovation launches Outperforming competition at Grocery 2 2 2 [ 23 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” GROW NORTH AMERICA THROUGH ADDITIONAL DISTRIBUTION Large Remaining Opportunity 2 Act II partnership benefits — Natural channel contacts & relationships — Increased brand support and reinvestment to drive retailer and consumer engagement — Relationships with club stores and super regional grocers Large remaining food service opportunity — Ability to deliver full suite of Original sweeteners (all colors) — Consumer demands for Natural alternatives — Low penetration of Stevia / Natural Continued penetration of retail includes new usage opportunities like baking / cooking Source: Company Materials, Nielsen 1. Velocity based on YTD xAOC channel for week ended 10/26/2019 and sales based on YTD U.S. Food channel for week ended 10/26/2019 2. Percentages represent preliminary year - over - year gross sales gains E - Commerce +286% YTD 2019 vs 2018 growth 2 ~100% targeted 2020 growth 2 Mass New and carryover distribution for Equal PLUS SKUs Whole Earth Erythritol Incremental Whole Earth SKUs Whole Earth Innovation SKUs Innovation – Equal Increased Distribution and Food Service Key Near - Term Sales Drivers Initiatives expected to account for 10+% sales growth in 2020 Drugstore ® Whole Earth Expansion in Grocery +38% YTD Velocity 1 +63% 2019 YTD sales 1 Warehouse Club ® Canada Food Service Discount Allulose Baking Blends Monk Fruit Equal Plus (Vitamins, Caffeine) Equal flavors, including French Vanilla and Salted Caramel, and seasonal Equal pink & Natural liquid Stevia Whole Earth Turmeric Collagen MCT Oil Baking Platform Infusions (Packets) [ 24 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” Mass, Large and Regional Grocery + Key Distributors Club Stores Broadline Distributors & Food Service Operators International Markets Opportunity to Increase Share Whitespace Opportunity Act II and Irwin Simon have strong relationships across many new channels and customers Customer Type Source: Company Materials Note: The organizations identified above are for illustrative purposes only . No definitive agreements have been reached Potential with large organic grocers Whitespace in regional and super - regional grocers Additional club stores Opportunity with distributors and food service India China Middle East Canada Thailand ACT II TEAM BRINGS A LARGE BREADTH OF NEW RELATIONSHIPS TO HELP FUEL GLOBAL EXPANSION 2 [ 25 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” SUPPORT CONTINUED GROWTH IN DEVELOPING ECONOMIES AND ENTRANCE INTO NEW GEOGRAPHIES 3 Case Study: Successful Entry in APAC Case Study: Expansion of Natural in Existing Markets ▪ Building distribution (at 70% with 92% acceptance 1 ) of upgraded SKUs, including new unique portable mini cubes and Organic Agave under Pure Via ▪ Achieved distribution at Sainsbury, Tesco, Waitrose, and other key retailers ▪ Recently won Starbucks distribution across EAME region (1,716 stores) ▪ Secured distribution in core retailers Woolworth and Metcash ▪ 92% acceptance 1 $15 $15 $17 $18 2016A 2017A 2018A 2019 Preliminary ($ in mm) Source: Company Materials Note: Reflects Merisant net sales. 1. Acceptance refers to the percent of existing distribution that has accepted the upgraded SKUs 2. Figures reported on a constant currency basis 2017: Launched into Australia with distribution at Woolworths (45% SOM) 2018: Launched into NZ with full distribution 2019: Whole Earth is Australia’s fastest growing sweetener brand 2019 2017 2018 2019: Launches into Philippines 2018: Pure Via l aunched into Thailand (driving TH Merisant consumption +24%) Net Sales Growth in Key Geographies 2 $17 $16 $18 $16 APAC LATAM +5% ® ® ® ® ® China and India remain underpenetrated markets, with potential growth not contemplated in current guidance APAC Net Sales 2018A 2019 Preliminary [ 26 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” SUPPLEMENT ORGANIC GROWTH WITH TARGETED TUCK - IN M&A ▪ Management and Act II maintain a robust list of potentially actionable acquisition opportunities across end markets to build scale, strengthen position, and enter new markets globally ▪ Management and Act II have significant experience in executing and integrating M&A transactions and view targeted tuck - in M&A as a core part of Whole Earth’s value creation strategy Illustrative Potential Acquisition Targets Name Country Sector Approx. Annual Revenue Target 1 United States Branded Food / CPG $100mm Target 2 Argentina Branded Food / CPG $15mm Target 3 Italy Branded Food / CPG $20mm Target 4 United Kingdom Branded Food / CPG $17mm Target 5 China Licorice Derivatives $ 25mm Target 6 China Licorice Derivatives $ 20mm Target 7 Japan Functional Ingredients $ 20mm 15 4 Source: Company Materials Note: Tuck in M&A is excluded from current financial projections provided herein [ 27 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” 2019E Net Sales Product / Category Innovation North America Distribution Growth Growth in Other Geographies 2021E Potential Net Sales Opportunity Tuck In M&A Opportunities Additional Geographic & Distribution Expansion JV and M&A Opportunities in New Verticals Net Sales Opportunity ~$1bn+ $272 - $275mm 1 2 3 5 6 ADDITIONAL UPSIDE OPPORTUNITIES OUTSIDE OF CORE OPERATING MODEL Source: Company Materials Base Case Net Sales Opportunity Longer - Term Opportunities 4 Near - term Organic Net Sales Opportunity 2019 Preliminary Numbers Mid Single Digit Organic Growth Accelerated Growth from Platform Capabilities and Act II Team Relationships [ 28 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” IV . Financial Overview

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” $42 $44 $42 $46 $44 $43 North America West. Europe RoW YTD 9/30 FINANCIAL PERFORMANCE SUPPORTS FUNDAMENTAL GROWTH THESIS AND PROJECTIONS Key Drivers of Recent Business Momentum ▪ Expansion of Natural sweetener business across geographies, notably North America ▪ Distribution gains across mass and club aided by new, innovative products ▪ Focus on Original sweetener in developing countries ▪ Ongoing stability at Flavors & Ingredients, driven by recent extension of a contract for 10 years with key customer ▪ Significant progress in underpenetrated markets, such as Southeast Asia, for the derivatives segment ▪ Flavors & Ingredients continues to invest in the derivatives segment by hiring key commercial leaders in Europe, US and Asia Source: Company Materials Note: 2019 f igures excludes Whole Earth food services chain partnership and slotting fees 1. Figures reported are actual on a constant currency basis 2. Reflects (PF Adj. EBITDA less Capex) / sales Branded CPG Net Sales Growth In Key Geographies 1 Branded CPG Net Sales Evolution 1 0% ’19 EBITDA $9 $7 $9 1 2 3 4 YTD 9/30 Growth: 3% 0% Flavors & Ingredients FCF Evolution 2 25.6% 29.4% 17.7% 27.5% 25.5% 26.7% Q1A Q2A Q3A $45 $43 $40 $45 $45 $43 Q1A Q2A Q3A 5 6 9 months 2018A 9 months 2019A 2018A 2019A 2018A 2019A [ 30 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” Net Sales $ 272mm - $ 275mm Constant Currency 1 : $281mm - $284mm PF Adj. EBITDA $62mm - $ 64mm Constant Currency 1 : $64mm - $66mm 2019 UPDATE Source: Company Materials 1. Figures are on a constant currency basis relative to 2018 for the Branded CPG segment only 2. Free Cash Flow calculated as PF Adj. EBITDA at the preliminary range midpoint less $3.5m of CapEx & $3.5m of Whole Earth food services chain partnership investment 2019 Results are Preliminary and Subject to Full Close and Audit 2019 Commentary Overview of Preliminary 2019 Financial Results ▪ Significant progress on our articulated strategy of driving innovation, growing North America and continued growth in developing economies − Grew North America Branded CPG net sales by 4% (with Whole Earth net sales growing over 125 %), outperforming the overall category − Grew Branded CPG net sales 1 in other key geographies: APAC +8%, LATAM +5% − Successfully introduced innovation in Whole Earth (baking and infusions) and Equal (Equal Plus and Equal Flavors ) − Innovation represented 17% of Branded CPG net sales in 2019 ▪ Net Sales headwinds in 4Q19 were mostly related to timing of retail partners implementing innovation shelf resets, trade investments, and retailer inventory drawdowns in Europe ▪ Improved consolidated profit margins with Pro Forma Adjusted EBITDA margin up 100+ bps − Management anticipates previously articulated 2019 Pro Forma Adjusted EBITDA will fall within preliminary 2019 range − Continued to realize efficiencies in SG&A and Branded CPG trade spend ▪ Generated strong free cash flow of over $56 million 2 [ 31 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” 2020E Guidance Long - Term Algorithm Net Sales $290mm – $305mm ▪ Low - to - mid single - digit organic growth through the cycle − Driven by distribution gains, geographic expansion, and continued innovation − Accelerated by tuck - in acquisitions PF Adj. EBITDA $67mm – $71mm ▪ Margins of ~23 - 25% − Operational leverage from existing footprint and SG&A platform ▪ M id single - digit growth − Accelerated by accretive and synergistic tuck - in acquisitions $7mm – $8mm ▪ ~1.5% of net sales − Asset - light business model Capex FINANCIAL GUIDANCE Source: Company Materials Acquisitions & related synergies not included in guidance [ 32 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” % of 2019 Preliminary Net Sales Growth Drivers And Commentary North America Sweeteners 22% ▪ North America grew 9% YTD, through 3Q’19 ▪ Forecast reflects continued growth in Whole Earth due to shift to Natural Whole Earth net sales grew from $0 to almost $10M in 2 years and has hit critical mass Natural experiencing >55% growth YTD through 3Q’19 ▪ Whole Earth and Natural products account for ~66% of forecasted growth ▪ Mix shift from Original SKUs to new innovations launching in 4Q’19/2020E and beyond ▪ 2019 preliminary net sales split between Natural and Original is approximately 33% / 67% Western Europe Sweeteners 20% ▪ Leading brands in both Original and Natural enables retention of customers switching from Original to Natural sweeteners (both Canderel and Pure Via brands) Continued double - digit growth of Pure Via, as well as single digit growth in Canderel ▪ Strong trends in YTD sell - out data at retail for Pure Via 1 France: +4% | UK: +13% | W. Europe 2 : +6% ▪ Well positioned to benefit from category expansion as household sweetener penetration increases due to the transition away from sugar ▪ Growth contribution from new product innovation (baking and functionals ) ▪ 2019 preliminary net sales split between Natural and Original is approximately 32% / 68% Rest of World 17% ▪ ~6% average volume growth over the last 3 years is expected to continue ▪ Macro tailwinds remain strong as diabetes and obesity rates rise in developing nations and local consumers are seeking low - cost sugar alternatives ▪ Household sweetener penetration is expanding the category in these countries due to the transition away from sugar ▪ Accelerating brand building, innovation and marketplace execution in geographies where Equal and Canderel are considered premier brands ▪ Only a nominal contribution from India and China is included in the projections Branded Adjacencies 2% ▪ ~50% growth expected between 2018 and 2019E ▪ High overlap between sweetener users and sugar - free consumers ▪ Expanding the number of adjacencies from chocolate and jams to include granola, cereal bars, and wafers (Canderel, Equal, Whole Earth, Pure Via branded) starting in 3Q’19E Launches in countries where Branded CPG has high market share and brand awareness Efforts underway to expand into UK, Belgium, Ireland, Australia/NZ, Argentina, and SE Asia BRANDED CPG IS DELIVERING RESULTS ACROSS ALL GEOGRAPHIES AND ADJACENCIES Source: Company Materials 1. Based on Nielsen YTD November 2019 2. France + UK represents ~75% of Branded CPG net sales in W. Europe [ 33 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” % of 2019 Preliminary Net Sales End Market Outlook Growth Drivers And Commentary Extracts + European confection + Global smokeless = US Confection = US Tobacco − International traditional Smoking ▪ Domestic extracts profits protected by 10 year contract with largest customer Contractual price adjustments can offset volume loss Domestic represents ~55% of Traditional Smoking ▪ Smokeless tobacco volumes continue to show positive trends ▪ Select international traditional smoking tobacco (~53% of traditional smoking) expected to shift away from extract use in 2020 Transition could take longer Remainder of volumes remain unchanged ▪ Opportunity to grow through low cost sourcing advantage not fully reflected in projections Derivatives + Packaged food + Consumer health OTC + Beauty and personal care ▪ Magnasweet volume trends remain positive ▪ Large flavoring market opportunity upside is not reflected in the forecast Renewed focus on R&D with a robust pipeline of projects Hiring sales people from flavor - houses Increasing presence at key industry conventions and events ▪ Continued positive trends in derivatives volumes servicing APAC additives market Supported with R&D efforts ▪ Opportunity to grow in derivatives through cost advantage via M&A which is not captured in projections FLAVORS & INGREDIENTS IS DELIVERING RESULTS ACROSS ITS DIVERSIFIED PRODUCT MIX WITH INCREASING FOCUS ON GROWTH OF DERIVATIVE PRODUCTS Source: Company Materials Note: Pure Derivatives targets the Beauty & Personal Care end market. 24% 15% Confection 23 % Smokeless 21 % Traditional Smoking 56 % Pure Derivatives 50 % Magnasweet 50 % [ 34 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” ▪ Net leverage of ~2.0x 1 at close ▪ Balance sheet set up with ample flexibility to pursue synergistic, growth - enhancing M&A ▪ Long - term leverage target < 3.0x ▪ Flexibility to increase leverage for M&A; free cash flow to be used to delever back to < 3.0x within a reasonable period of time post - M&A ▪ Priority for capital allocation will be towards M&A and deleveraging post - M&A CAPITAL ALLOCATION STRATEGY Source: Company Materials 1. Reflects $ 75mm PIPE and Warrant Amendment cost of $11.25mm (based on $0.75 per warrant) [ 35 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” V. Transaction Detail

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” Sources & Uses Source: Company Materials Note: Pro Forma share count includes 30.0mm ACTT Class A shares, 2.5mm ACTT Founder shares, 7.5mm shares issued to potential PIPE investors, and 6.0mm rollover shares issued to selling shareholders; Pro Forma share count excludes 7.5mm Public warrants (after Warrant Agreement amendment) with strike price of $11.50 / share, 2.632 mm Private Placement warrants with strike price of $11.50 / share, and 2.0 million sponsor shares which vest at $20.00 / share; projections exclude financial impact of potential future acquisitions; 2020 includes $1.75mm of assumed incremental public company costs 1. Excludes interest on cash - in - trust 2. Subject to 1 - year lock - up period 3. Reflects proceeds of $ 75mm from PIPE 4. Committed financing from Toronto - Dominion Bank, New York Branch comprised of Term Loan A and a $50 million revolving credit facility ; Includes $11mm based on Warrant Agreement amendment which provides each existing warrant holder with $0.75 per warrant 5. Metric represents mathematical midpoint of provided guidance for 2020 TRANSACTION SUMMARY Pro Forma Valuation ($ in mm) Pro Forma Equity Ownership % 65.2% Act II Public Shareholders 5.4% Act II Sponsor 13.0% M&F 16.3% PIPE Investors [ 37 ] 5 PF Shares Outstanding (mm) 46.0 Illustrative Act II Share Price $10.00 Equity Value $460 Plus: Net Debt 126 Enterprise Value $586 Valuation Multiples Metric Multiple 2020E PF Adj. EBITDA $69 8.5x Sources SPAC Cash-in-Trust 1 $300 M&F Upfront Roll 2 60 Private Placement 3 75 New Net Debt 4 126 Total $561 Uses M&F Debt Paydown / Cash Out $450 M&F Upfront Roll 2 60 Warrant Agreement Amendment Cost 11 Transaction Fees & Expenses 40 Total $561

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” F&B CPG OPERATING METRICS BENCHMARKING 2019E - 2021E Revenue CAGR 2019E - 2021E EBITDA 1 CAGR 2020E FCF 2 Margin Source: Company Materials; Capital IQ , financials as of 2/11/2020 Notes : Projections exclude financial impact of potential future acquisitions; 2020 and 2021 include $1.75mm of assumed incremental public company costs. Simply Good Foods is pro forma for recent acquisitions. 1. 2019E - 2021E PF Adj. EBITDA represents EBITDA adjusted for certain non - cash and one - time items, as well as pro forma effects of r estructuring programs ending in 2021; for historical calculations of PF Adj. EBITDA see page 40 2. Whole Earth Brands Free Cash Flow calculated as Adj. EBITDA less CapEx & Whole Earth food services chain Investment. FCF for other companies calculated as EBITDA less CapEx 3. 2019E and 2020E data represent midpoint of guidance for illustrative purposes; 2021E data represents 5% Net Sales growth from 20 20 midpoint of guidance and midpoint of long term margin guidance for illustrative purposes. Note 2019 preliminary capex assumed to be ~$3.5mm Ingredients 2020E EBITDA 1 Margin Whole Earth Brands expects to deliver upper tier financial results relative to peers… Median: 2.9% Median: 3.8% Median: 3.0% Median: 5.5% Median: 20.2% Median: 16.8% Median: 17.6% Median: 11.5% 3 3 3 3 [ 38 ] 6.9% 13.7% 5.2% 3.3% 2.6% 0.8% 0.1% 6.5% 5.9% 4.0% 3.5% 2.3% 0.2% Whole Earth Brands Bellring Brands Simply Good Foods Post Holdings McCormick & Company B&G Foods Smuckers Symrise Darling Ingredients International Flavors & Fragrances Kerry Group Ingredion Tate & Lyle 7.2% 11.1% 7.4% 3.0% 3.0% 1.9% 0.4% 8.8% 7.0% 6.5% 4.4% 2.4% 2.0% Whole Earth Brands Simply Good Foods Bellring Brands Post Holdings McCormick & Company B&G Foods Smuckers Symrise International Flavors & Fragrances Kerry Group Darling Ingredients Ingredion Tate & Lyle 23.2% 21.6% 21.3% 21.1% 19.3% 18.1% 18.1% 22.2% 21.3% 17.1% 16.5% 15.3% 13.6% Whole Earth Brands Smuckers Post Holdings McCormick & Company Bellring Brands B&G Foods Simply Good Foods International Flavors & Fragrances Symrise Tate & Lyle Ingredion Kerry Group Darling Ingredients 20.2% 19.0% 17.8% 17.7% 17.5% 17.2% 15.2% 18.2% 15.7% 11.9% 11.1% 10.4% 6.2% Whole Earth Brands Bellring Brands Smuckers McCormick & Company Simply Good Foods Post Holdings B&G Foods International Flavors & Fragrances Symrise Tate & Lyle Kerry Group Ingredion Darling Ingredients

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” 9.5x 26.5x 18.6x 16.9x 13.5x 12.9x 11.1x 29.0x 27.2x 24.2x 19.9x 12.8x 12.1x Whole Earth Brands McCormick & Company Bellring Brands Simply Good Foods Smuckers Post Holdings B&G Foods Darling Ingredients Kerry Group Symrise International Flavors & Fragrances Ingredion Tate & Lyle Ingredients VALUATION METRICS BENCHMARKING TEV / 2020E FCF 2 TEV / 2020E EBITDA 1 Source: Company Materials; Capital IQ, financials as of 2/11/2020 Notes: Projections exclude financial impact of potential future acquisitions; 2020 includes $1.75mm of assumed incremental publi c company costs. Simply Good Foods is pro forma for recent acquisitions. 1. Whole Earth Brands multiple based on Adj. EBITDA, adjusted for certain non - cash and one - time items, as well as pro forma effects of restructuring programs ending in 2021; for his torical calculations of PF Adj. EBITDA see page 40 2. Whole Earth Brands multiple based on Free Cash Flow calculated as Adj. EBITDA less CapEx & Whole Earth food services chain partnership Investment. FCF for other companies calculated as EBITDA less CapEx 3. 2020E data represents midpoint of guidance for illustrative purposes F&B CPG …While the Whole Earth Brands’ transaction is taking place at a meaningful discount to key peers Median: 14.0x Median: 14.7x Median: 15.5x Median: 22.2x 3 3 [ 39 ] 8.5x 22.3x 18.1x 16.8x 11.3x 10.7x 9.3x 19.6x 18.3x 16.2x 13.2x 8.6x 8.4x Whole Earth Brands McCormick & Company Bellring Brands Simply Good Foods Smuckers Post Holdings B&G Foods Kerry Group Symrise International Flavors & Fragrances Darling Ingredients Ingredion Tate & Lyle

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” RECONCILIATION OF HISTORICAL PRO FORMA ADJUSTED EBITDA Source: Company Materials Note: LTIP / other retention incentives will be removed upon acquisition by Act II 1. Represents adjustments to reflect benefits of Flavors & Ingredients facility restructuring and supply chain optimization The Targets have gone through a substantial transformation and EBITDA adjustments are expected to decline significantly going forward ▪ Foreign exchange and other expenses, net Other income on the Income Statement, which is mainly unrealized (gains)/losses from currency fluctuation ▪ Restructuring, including severance and related expenses 2018 : Majority is severance for Merisant personnel changes and implementing cost savings initiatives at Mafco 2017: Majority is Merisant severance and costs of Illinois facility closure, and implementing cost savings initiatives at Mafco ▪ Legal settlement costs Mostly one - time costs of Merisant legal reorganization, and settlement cost with former employees ▪ Inventory and other charges 2018: Non - cash adjustments for deferred rent purchase accounting 2017: Includes a Mafco inventory charge related to cost savings initiatives, remainder are non - cash adjusted for deferred rent purchase accounting, and small one - time items ▪ Brand introduction costs Whole Earth sampling program at Starbucks ▪ Non - cash pension costs Non - cash expense related to pension plan ▪ Long - term incentive plan (“LTIP”) LTIP will be paid out in equity on a go - forward basis Reflects non - cash compensation ▪ Restructuring adjustments 2018: Negative overhead absorption and plant efficiency at Mafco due to cost savings initiatives 2017: Plant labor inefficiency at Mafco due to cost savings initiative 1 2 4 5 7 8 6 3 1 2 4 5 7 8 6 3 MANAGEMENT ADJUSTMENTS FY2018 FY2017 ($ mm) Combined Combined Net Income $20.9 $25.1 Income taxes 5.3 (10.2) Depreciation and amortization 14.7 14.5 EBITDA $40.9 $29.4 Management adjustments: F/X and other expenses, net (0.5) 4.9 Restructuring, including severance and related expenses 8.3 9.5 Legal settlement costs 2.3 0.4 Inventory and other charges 0.5 2.1 Brand introduction costs 2.8 3.3 Non-cash pension costs 1.9 1.9 Long term incentive plan 1.0 (0.0) ADJUSTED EBITDA $57.2 $51.6 Restructuring adjustments 1 5.8 0.9 PRO FORMA ADJUSTED EBITDA $63.0 $52.5 [ 40 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” A. Appendix: Supplemental Materials

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” INTRODUCTION TO ANDY RUSIE, APPOINTED CFO OF WHOLE EARTH BRANDS AS OF DECEMBER 2019 ▪ Experienced, global CFO with public, CPG company qualifications including: — Expat leadership experiences in China, Southeast Asia, Latin America, and Europe — Extensive Mergers & Acquisitions experience from large deals ($17B) to small, tuck - in deals — SEC Reporting experience having worked for three Fortune 500 companies and Ernst & Young — Led investor relations function ▪ Current Board Member of the American Chamber of Commerce South China ▪ Previously worked in a variety of senior finance and strategy roles in Multi - National companies including Reckitt Benckiser, Mead Johnson Nutrition, Abbott Laboratories, Bristol - Myers Squibb and Ernst & Young (CPA) ▪ MBA from Indiana University – Kelley School of Business and BS in Accounting from Miami University Andy Rusie CFO Background Vision ▪ Lead a best - in - class Finance and IT department that will enable our ambition to be a $1B public company ▪ Current focus is on public company readiness, enhancing business support to drive growth & margins, and evaluating M&A opportunities Drive robust FP&A processes Establishing public company reporting capabilities Hired a Big 4 firm to assist in the public company readiness process Source: Company Materials [ 42 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” Source: The Hain Celestial Group, Inc. public company filings, Mergermarket 1. Represents CBD opportunities that comply with all applicable laws ACT II TEAM VALUE CREATION AT HAIN CELESTIAL Platform Acquisitions ▪ Demonstrated track record of capturing first - mover advantage: Personal Care, Natural/Organic, Health and Wellness as well as CBD 1 ▪ Disruptive first - mover in Natural and “better - for - you” food categories ▪ Disciplined growth via accretive M&A ▪ Leveraged distribution whitespace to drive consumer expansion ▪ Focus on free cash flow and synergy realization ▪ Shareholder - aligned team, delivering returns Selected Bolt - On Extensions (50+) 1998 2000 1999 2004 - 2007 Execution Track Record ($mm) Sales Operating FCF (Margin %) 2010 2013 2010 2014 Examples of Value Creation $58 $2,853 ($2) $154 1995 2017 1995 2017 (3.4%) 5.4% [ 43 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” HIGHLY DIVERSIFIED CUSTOMER BASE Source: Company Materials; customer concentration based off 2018A revenues CUSTOMER CONCENTRATION Other Customers: 46.5% Other Customers: 22.7% #1: 7.2% #2: 3.7% #3: 2.7% #4: 2.0% #5: 2.0% #1: 2.9% #2: 2.8% #3: 2.6% #5: 2.3% #4: 2.6% COMMENTARY ▪ Whole Earth Brands has a large and diverse global customer base ▪ No single customer accounted for more than 10% of total sales in 2018 ▪ The top 5 Branded CPG customers accounted for 13.2% of total sales in 2018 ▪ The top 5 Flavors & Ingredients customers accounted for 17.6% of total sales in 2018 Branded CPG Customer Flavors & Ingredients Customer [ 44 ]

5.00 4.00 3.08 4.35 5.0 Text box margins 4 x 0.05” HISTORICAL FINANCIALS ($ mm) 2017A 2018A Branded CPG Net Sales $168.1 $173.8 Flavors & Ingredients Net Sales 119.9 117.2 Total Net Sales $288.0 $291.0 Less: COGS ($167.5) ($167.9) Total Gross Profit $120.5 $123.1 Less: SG&A ($76.6) ($74.0) Less: Public Company Costs 0.0 0.0 Less: Amortization of Intangibles (11.1) (11.1) Less: Restructuring and Other Charges (14.0) (10.2) Total EBIT $18.8 $27.7 Memo: Branded CPG EBIT ($3.8) $8.3 Flavors & Ingredients EBIT 22.6 19.4 Plus: Depreciation $3.4 $3.6 Plus: Amortization of Intangibles 11.1 11.1 Less: Other Expenses, net (3.9) (1.5) EBITDA 29.4 40.9 Adjustments to Sales 1 ($0.3) ($1.4) Adjustments to COGS 2 8.5 9.1 Adjustments to SG&A 3 3.1 2.0 Restructuring Adjustments 4 7.2 3.7 FX Gain / (Loss) and Other Expenses, net 5 3.7 1.9 Long Term Incentive Plan (0.0) 1.0 Adjusted EBITDA $51.6 $57.2 Pro Forma Adjustments to COGS 6 $0.9 $4.0 Pro Forma Adjustments to SG&A 6 0.0 1.8 Pro Forma Adjusted EBITDA $52.5 $63.0 Memo: Total Capex $6.4 $6.9 Note: Amounts for 2017 and 2018 are derived from the audited financial statements 1. Includes Brand Introduction Costs 2. Includes FX and Other Expenses, Restructuring, Inventory and other Charges, Brand Introduction and Non-Cash Pension costs 3. Includes FX and Other Expenses, Restructuring, Legal, Inventory and other Charges, Brand Introduction and Non-Cash Pension costs 4. Includes Restructuring, Legal, Inventory and Other Charges 5. Includes FX and Other Expenses, net that are not included in Operating Income 6. Includes restructuring adjustments [ 45 ]

 

 

 

Exhibit 99.3

 

February 12, 2020

 

Baron Small Cap Fund

767 5th Ave., 48th floor

New York, NY 10153

Attn: Patrick M. Patalino

Email: [email protected]

 

Re:	Side Letter to Subscription Agreement

 

Ladies and Gentlemen:

 

This letter confirms our agreement in connection with the Subscription Agreement (the “Subscription Agreement”) dated as of February 12, 2020 (the “Subscription Agreement”), by and between Act II Global Acquisition Corp. (the “Company”) and Baron Small Cap Fund (“Baron”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Subscription Agreement.

 

In consideration of the foregoing and the mutual premises hereinafter set forth, the parties hereto agree that, substantially concurrent with Closing (but contingent upon receipt by the Company of the funds under the Subscription Agreement), Act II Global LLC will designate, as the sole holder of the Class B ordinary shares of the Company, one individual that has been mutually agreed with Baron Small Cap Fund to serve as a director of the board of directors of the Company. For the avoidance of doubt, for purposes of the Investors Agreement (as defined in the Transaction Agreement), the director designated hereunder shall be appointed pursuant to Act II Global LLC’s right to appoint one of five members of the initial board of directors of Whole Earth Brands, Inc., to be effective as of the closing of the Transaction, and shall have no impact on the Sellers’ rights to appoint directors or otherwise under the Investors Agreement.

 

This letter shall be governed by and construed under the laws of the State of New York, without giving effect to conflicts of laws principles.

 

This letter may be executed in two or more counterparts (including, without limitation, facsimile counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.

 

All of the terms and provisions of this letter shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assignees. Neither party shall assign this letter or its rights or obligations hereunder without the prior written consent of the other parties, and any such assignment that is made without such consent shall be void and of no force and effect.

 

 

If the foregoing accurately sets forth our understanding, please acknowledge by signing in the space provided below.

 

[Signature Page Follows]

 

 

			Very truly yours,
			ACT II GLOBAL LLC
			By:	/s/ John Carroll
			Name:	John Carroll
			Title:	Managing Member
Accepted and agreed to as
of the date first written above:
Baron Small Cap Fund
By:	/s/ Patrick M. Patalino
Name:	Patrick M. Patalino
Title:	General Counsel

 

---

Serious News for Serious Traders! Try StreetInsider.com Premium Free!

---

You May Also Be Interested In

• Sony/Apollo bid for Paramount could be worth as much as $29 billion - Source
• Latest From CEO.CA's Inside the Boardroom: Insights From Across The Mining Sector
• Form 8.3 - Hipgnosis Songs Fund Limited