展品10.1
非贖回協議和經濟權益轉讓
本非贖回協議和經濟權益轉讓協議（以下簡稱“協議”）於2024年 日由開曼群島豁免公司Spring Valley Acquisition corp. II（下稱“SVII”） 、特許公司Spring Valley Acquisition Sponsor II，LLC（下稱“贊助商”）以及簽署的投資者（以下統稱“投資者”).
前言
鑑於目前，贊助商持有754,666,6股A類普通股，每股面值$0.0001（“創始股份”）和一股B類普通股，每股$0.0001（“B類普通股”），這些股份最初是在SVII首次公開發行（“鈾”);
而， SVII預計將舉行特別股東大會（”會議”）以批准爲目的， 除其他外，對2022年10月12日SVII經修訂和重述的備忘錄和章程的修正案， 經2024年1月11日某些修正案修正（如本文發佈之日存在的那樣，”經修訂和重述的條款”) 延長 SVII 必須完成初始業務合併的截止日期（”初始業務合併”) 自SVII首次公開募股完成之日起36個月或董事會自行決定的更早日期（”修正案”);
鑑於根據修改後的章程規定，SVII的股東可以在與修正後的章程修正（在與會議一起修改時）中批准的條款下，贖回作爲SVII IPO套房單位一部分最初出售的A類普通股份（無論是在SVII IPO中購買還是之後在市場上購買）公開股份及與創始人股份和B類普通股份一起，即「」普通股）與修正後的章程修正（與會議有關時將進行修正的相同內容）批准修正時，按照修正後的章程規定的條款進行贖回文章”贖回權”);
鑑於根據本協議的條款和條件，投資者願意放棄行使贖回權，或者有效地撤銷之前提交的有關公共股票的贖回要求，根據此處規定的條款，關於此事項，贊助商希望以下列方式中的一種來：(i)向SVII投降並無償放棄創始人股票的數量，如下所示 展品 A，以及SVII希望向投資者發行或使其發行的股份數量，如下所示 展品 A (「本登記聲明」) 由特立軟件股份有限公司，一家德拉華州股份公司 (以下簡稱爲「本公司」) 提交，目的是爲了註冊其額外的7,184,563股A類普通股，每股面值$0.0001 (以下簡稱爲「A類普通股」), 以及在特立軟件股份有限公司 2022年股權激勵計劃下可發行股份的1,436,911股A類普通股，注(下文簡稱爲「A類普通股」)。促進股票”) 在SVII完成首次業務組合時; 或(ii)向投資者轉讓所說明的創始人股票數量 展品 A （投資者將收到的股份數量，即“指定證券”).
現在 因此鑑於在本文件中載明的相互契約和協議以及對於良好和有價值的考慮， 其收據和充分性特此確認，投資者、贊助商和SVII特此同意如下：
| 1. | 轉讓或發行條款. |
| 1.1. | 根據本協議的條款和條件，如果（a）在會議當天下午5:30紐約時間時，投資者持有投資者股份（如下所定義），（b）投資者在與會議相關聯的情況下未行使（或已行使並有效撤銷）其贖回權利，對於此類投資者股份，（c）修正案在會議上獲得批准，且SVII符合繼續或初始上市要求，以便在會議後被列入國家證券交易所，那麼在首次業務組合結束時，贊助方在實質上立即同意將指定證券轉讓給投資者，不另行支付任何考慮，或者將指定證券交還給SVII並無償放棄指定證券（該交還和放棄，即，“股份取消”並且SVII特此同意發行或導致發行激勵股份（此類發行，即“股份發行”）。 「投資者股份」應指一定數量的公共股份，等於較小者（i）[●]公共股份 和（ii）未被贖回的公共股份中佔9.9%的公共股份，包括在會議日期前後與其他SVII股東類似於本協議的不贖回協議約定的那些公共股份。 贊助方和SVII同意最遲在會議日期前第一個工作日紐約時間上午9:30之前向投資者提供根據本協議約定的投資者股份的最終數量（並在任何情況下提前足夠的時間來允許投資者取消針對任何投資者股份的贖回權的行使）； 在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時；，該數量不得超過[●]公共股份。 |
| 1.2. | 保薦人、SVII和投資者特此同意，轉讓證券或股份發行和註銷 應遵守 (i) 初始業務合併已完成以及 (ii) 投資者（或任何個人）的條件 根據以下規定允許向誰轉移 第 5 節 經修訂的日期爲2022年10月12日的某些信函協議中 2024年1月10日信函的某些第1號修正案（如本文發佈之日存在的那樣）信函協議”）， 由SVII及其中，保薦人以及SVII的高級管理人員和董事（”允許的受讓人”) 執行合併訴訟 按照書面協議的規定執行 附錄 B 加入本協議。 |
在上述條件（如適用）滿足之後，指定證券應及時交付給投資者（或其被許可受讓方），且不遲於首次業務組合結束後的兩（2）個工作日內，清理並無任何留置或其他擔保除依據 第5部分 信函協議約定，受證券法律規定的轉讓限制，聯接（如下定義）和與首次業務組合相關的任何繼任者或類似協議（該協議不對投資者產生其他義務，僅對指定證券的轉讓施加限制，且這些限制不應不如或更爲嚴格地折何贊助方所同意的約定且不得比信函協議當前包含的轉讓限制更嚴格）。贊助方和SVII承諾並同意按照上述促成該轉讓或向投資者（或其被許可受讓方）發行股份。
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| 1.3. | 調整股份數量如果創始股份數量隨着合併、組合、分拆或重分類SVII普通股或其他類似事件而增加或減少，則從上述合併、組合、分拆、重分類或類似事件生效日起，本協議中涉及的所有股份數量將按SVII普通股的增加或減少比例進行調整。儘管本協議中可能有相反規定，投資者承認並同意創始股份數量的持有人放棄了 第17.3節 章程中創始股份持有人對所有創始股份，包括指定證券的豁免適用，並且指定證券的持有人根據 第17.3節 章程沒有權利。 |
| 1.4. | 合併或重組，以太經典如果發生涉及SVII的任何重組、資本重組、股份再分類、合併或合併等情況，其普通股被轉換爲或換股爲證券、現金或其他財產，那麼，在任何這種重組、資本重組、股份再分類、合併或合併之後，非SVII普通股交易或換股爲非普通股，保薦人應將相應地轉讓或SVII應發行或導致被髮行，對每股創始股轉讓或依據本協議發行的證券、現金或其他財產的種類和金額。 |
| 1.5. | 沒收、轉讓等 投資者不應受到沒收、讓出、追回、轉讓、處置、交換或獎勵等任何原因的影響，而要對交付的證券承擔責任。投資者承認根據 業務組合之前、或在初次業務組合前，贊助方的管理人員有權令贊助方使創始股份受到沒收、轉讓或其他限制，或者修改授出創始股份的條款或設定創始股份的文件中規定的任何限制或其他條款（包括贊成任何此類修改），或與創始股份有關的任何其他安排，且管理人員被授權實施此類沒收、轉讓、限制、修改或安排，包括涉及放寬或提前解除限制的安排，根據他們自行和絕對判斷的金額和條件，出於任何理由。贊助方承認並同意任何獎勵、沒收、轉讓、限制、修改或安排僅適用於非交付的創始股份，適用於交付的證券的條款和條件以及經濟權益（如下所定義）不會因此類獎勵、沒收、轉讓、限制、修改或安排而發生變化。 |
| 1.6. | 股份交割；其他文件。 在轉讓指定證券或根據本協議發行股份時，投資者需通過SVII的過戶代理以記賬形式收到該指定證券。本協議各方同意簽署、承認並交付進一步的文件，並進行所有必要或適當的其他行爲，以實現本協議的目的和意圖。 |
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| 1.7. | Registration Rights. Concurrent with the delivery of Assigned Securities to Investor under this Agreement, SVII agrees to use commercially reasonable efforts to submit to or file with the Securities and Exchange Commission (the “Commission”), within sixty (60) calendar days after the consummation of the Initial Business Combination or as soon as reasonably practicable thereafter (the “Filing Date”) (at SVII’s sole cost and expense), a registration statement on Form S-1 (the “Registration Statement”), registering the resale of the Assigned Securities (including those shares issued in connection with the domestication of SVII as a corporation incorporated under the laws of the State of Delaware), which Registration Statement may include shares issuable upon exercise of outstanding warrants or those held by the Sponsor, and SVII shall use its commercially reasonable efforts to have the Registration Statement declared effective under the Securities Act of 1933, as amended (the “Securities Act”), as soon as practicable after the filing thereof, following the closing of the Initial Business Combination and (ii) the 10th business day after the date SVII is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effective Date”); provided, however, that SVII’s obligations to include the Assigned Securities in the Registration Statement are contingent upon Investor furnishing in writing to SVII such information regarding Investor, the securities of SVII held by Investor and the intended method of disposition of the Assigned Securities as shall be reasonably requested by SVII to effect the registration of the Assigned Securities, and Investor shall execute such documents in connection with such registration as SVII may reasonably request that are customary of a selling shareholder in similar situations, including providing that SVII shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder. Notwithstanding the foregoing, if the Commission prevents SVII 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 Assigned Securities by the applicable shareholders or otherwise, such Registration Statement shall register for resale such number of Assigned Securities which is equal to the maximum number of Assigned Securities as is permitted by the Commission. In such event, the number of Assigned Securities to be registered for each selling shareholder named in the Registration Statement shall be reduced pro rata among all such selling shareholders. Upon notification by the Commission that the Registration Statement has been declared effective by the Commission, within two (2) business days thereafter, SVII shall file the final prospectus under Rule 424 of the Securities Act. SVII will provide a draft of the Registration Statement to Investor for review at least two (2) business days in advance of filing the Registration Statement; provided, that for the avoidance of doubt, in no event shall SVII be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall Investor be identified as a statutory underwriter in the Registration Statement unless requested by the Commission; provided, that if the Commission requests that Investor be identified as a statutory underwriter in the Registration Statement, Investor will have an opportunity to withdraw from the Registration Statement. Investor shall not be entitled to use the Registration Statement for an underwritten offering of Assigned Securities. For purposes of clarification, any failure by SVII to file the Registration Statement by the Filing Date or to effect such Registration Statement by the Effective Date shall not otherwise relieve SVII of its obligations to file or effect the Registration Statement as set forth above in this Section 1.7. |
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| 1.8. | Joinder to Letter Agreement. In connection with the transfer of the Assigned Securities or Share Issuance to Investor, Investor shall execute a joinder to the Letter Agreement in substantially the form attached here to as Exhibit B (the “Joinder”) pursuant to which Investor shall agree with SVII to be bound solely by Section 5 of the Letter Agreement solely with respect to the Assigned Securities. Notwithstanding anything in this Agreement or the Joinder to the contrary, Investor shall be released with respect to the Assigned Securities from any transfer or lock-up restrictions under the Letter Agreement to the same extent as any other holder of Founder Shares. |
| 1.9. | Termination. This Agreement and each of the obligations of the undersigned shall terminate on earlier of (a) the failure of SVII’s shareholders to approve the Amendment at the Meeting, (b) the fulfillment of all obligations of parties hereto, (c) the liquidation or dissolution of SVII, (d) the mutual written agreement of the parties hereto, or (e) if Investor exercises its Redemption Rights with respect to any Investor Shares in connection with the Meeting and such Investor Shares are actually redeemed in connection with the Meeting. Notwithstanding any provision in this Agreement to the contrary, the Sponsor’s obligation to transfer the Assigned Securities or SVII’s obligation to issue or cause to be issued the Promote Shares to Investor shall be conditioned on (i) the satisfaction of the conditions set forth in Section 1.2 and (ii) such Investor Shares not being redeemed in connection with the Meeting. |
| 2. | Assignment of Economic Interest upon the Assignment of Assigned Securities. |
| 2.1. | Upon satisfaction of the conditions set forth in Section 1.1, the Sponsor hereby assigns to Investor all of its economic right, title and interest in and to that number of Assigned Securities (other than the Promote Shares) set forth on Exhibit A (the “Economic Interest”), subject to adjustment as set forth in Section 2.2. The Economic Interest represents the Sponsor’s right to receive dividends and other distributions made by the Sponsor pursuant to the Limited Liability Company Agreement of the Sponsor (the “Sponsor LLC Agreement”) allocated to that number of Assigned Securities set forth on Exhibit A represented by the Founder Shares held directly by the Sponsor. For the avoidance of doubt, this Section 2 will not apply to Promote Shares issued by SVII to Investor. |
| 2.2. | If at any time the number of outstanding Founder Shares is increased or decreased by a consolidation, combination, split or reclassification or other similar event, then, as of the effective date of such consolidation, combination, split, reclassification or similar event, the number of shares underlying the Economic Interest shall be adjusted in proportion to such increase or decrease in outstanding Founder Shares. The foregoing shall not apply to (i) any increase or decrease in the number of authorized Founder Shares or (ii) a reclassification of the share capital of SVII, in each case in connection with the closing of the Initial Business Combination. |
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| 2.3. | Investor acknowledges and agrees that it has no right to vote on matters of the Sponsor as a result of the Assigned Securities or Economic Interest, or to vote with respect to any Assigned Securities, and it has no right to vote Assigned Securities prior to transfer of any such shares to Investor pursuant to this Agreement. |
| 2.4. | Investor acknowledges and agrees that if it has a right pursuant to its Economic Interest to receive any dividends or other distributions paid in Ordinary Shares or other non-cash property, the Sponsor shall transfer all of its right, title and interest in such dividends or distributions concurrently with the transfer of the Assigned Securities to such Investor pursuant to Section 1. |
| 2.5. | If the conditions to the transfer of the Founder Shares in Section 1 are not satisfied with respect to any Founder Shares, then Investor shall automatically assign its Economic Interests in such Founder Shares back to the Sponsor, for no consideration. |
| 3. | Representations and Warranties of Investor. Investor represents and warrants to, and agrees with, the Sponsor that: |
| 3.1. | No Government Recommendation or Approval. Investor understands that no federal or state agency has passed upon or made any recommendation or endorsement of the offering of the Assigned Securities or Promote Shares. |
| 3.2. | Accredited Investor. Investor is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act and acknowledges that the sale contemplated hereby is being made in reliance, among other things, on a private placement exemption to “accredited investors” under the Securities Act and similar exemptions under state law. |
| 3.3. | Intent. Investor is acquiring the Assigned Securities solely for investment purposes, for such Investor’s own account (and/or for the account or benefit of its members or affiliates, as permitted), and not with a view to the distribution thereof in violation of the Securities Act and Investor has no present arrangement to sell Assigned Securities to or through any person or entity except as may be permitted hereunder. |
| 3.4. | Restrictions on Transfer; Trust Account; Redemption Rights. |
| 3.4.1. | Investor acknowledges and agrees that, prior to their transfer hereunder, the Assigned Securities are, and following any transfer to Investor may continue to be, subject to the transfer restrictions as set forth in Section 5 of the Letter Agreement. |
| 3.4.2. | Investor acknowledges and agrees that the Assigned Securities are not entitled to, and have no right, interest or claim of any kind in or to, any monies held in the trust account into which the proceeds of SVII’s IPO were deposited (the “Trust Account”) or distributed as a result of any liquidation of the Trust Account. |
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| 3.4.3. | Investor agrees, solely for the benefit of and, notwithstanding anything else herein, enforceable only by SVII, to waive any right that it may have to elect to have SVII redeem any Investor Shares in connection with the Amendment and agrees not to redeem, or otherwise exercise any right to redeem, the Investor Shares in connection with the Amendment and to reverse and revoke any prior redemption elections made with respect to the Investor Shares in connection with the Amendment. For the avoidance of doubt, nothing in this Agreement is intended to restrict or prohibit Investor’s ability to redeem or trade any Public Shares (other than the Investor Shares) or redeem or trade any Investor Shares in its discretion and at any time after the date of the Meeting. |
| 3.4.4. | Investor acknowledges and understands the Assigned Securities are being offered in a transaction not involving a public offering in the United States within the meaning of the Securities Act and have not been registered under the Securities Act and, if in the future Investor decides to offer, resell, pledge or otherwise transfer Assigned Securities, such Assigned Securities may be offered, resold, pledged or otherwise transferred only (A) pursuant to an effective registration statement filed under the Securities Act, (B) pursuant to an exemption from registration under Rule 144 promulgated under the Securities Act, if available, or (C) pursuant to any other available exemption from the registration requirements of the Securities Act, and in each case in accordance with any applicable securities laws of any state or any other jurisdiction. Investor agrees that, if any transfer of the Assigned Securities or any interest therein is proposed to be made (other than pursuant to an effective registration statement or Rule 144 under the Securities Act), as a condition precedent to any such transfer, Investor may be required to deliver to SVII an opinion of counsel satisfactory to SVII that registration is not required with respect to the Assigned Securities to be transferred. Absent registration or another available exemption from registration, Investor agrees it will not transfer the Assigned Securities. |
| 3.5. | Voting. Investor agrees that it will and will cause its controlled affiliates to vote (or cause to be voted) or execute and deliver a written consent (or cause a written consent to be executed and delivered) all of Ordinary Shares owned, as of the applicable record date, by any of them at the Meeting in favor of the Amendment and cause all such shares to be counted as present at the Meeting for purposes of establishing a quorum. |
| 3.6. | Sophisticated Investor. Investor is sophisticated in financial matters and able to evaluate the risks and benefits of the investment in the Assigned Securities. |
| 3.7. | Risk of Loss. Investor is aware that an investment in the Assigned Securities is highly speculative and subject to substantial risks. Investor is cognizant of and understands the risks related to the acquisition of the Assigned Securities, including those restrictions described or provided for in this Agreement, the Sponsor LLC Agreement, the Letter Agreement and the Joinder pertaining to transferability. Investor is able to bear the economic risk of its investment in the Assigned Securities for an indefinite period of time and able to sustain a complete loss of such investment. |
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| 3.8. | Independent Investigation. Investor has relied upon an independent investigation of SVII and has not relied upon any information or representations made by any third parties or upon any oral or written representations or assurances, express or implied, from the Sponsor or any representatives or agents of the Sponsor, other than as set forth in this Agreement. Investor is familiar with the business, operations and financial condition of SVII and has had an opportunity to ask questions of, and receive answers from SVII’s management concerning SVII and the terms and conditions of the proposed sale of the Assigned Securities and has had sufficient access to such other information concerning SVII as Investor has requested. Investor confirms that all documents that it has requested have been made available and that Investor has been supplied with all of the additional information concerning this investment which Investor has reasonably requested. |
| 3.9. | Organization and Authority. If any entity, Investor is duly organized and existing under the laws of the jurisdiction in which it was organized and it possesses all requisite power and authority to acquire the Assigned Securities, enter into this Agreement and perform all the obligations required to be performed by Investor hereunder. |
| 3.10. | Non-U.S. Investor. If Investor is not a United States person (as defined by Section 7701(a)(30) of the U.S. Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder), Investor hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Assigned Securities or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the acquisition of the Assigned Securities, (ii) any foreign exchange restrictions applicable to such acquisition, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the acquisition, holding, redemption, sale, or transfer of the Assigned Securities. Investor’s subscription and payment for and continued beneficial ownership of the Assigned Securities will not violate any applicable securities or other laws of Investor’s jurisdiction. |
| 3.11. | Authority. This Agreement has been validly authorized, executed and delivered by Investor and (assuming due authorization, execution and delivery by the Sponsor and SVII) is a valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by equitable principles of general application and except as enforcement of rights to indemnity and contribution may be limited by federal and state securities laws or principles of public policy. |
| 3.12. | No Conflicts. The execution, delivery and performance of this Agreement and the consummation by Investor of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) Investor’s organizational documents, (ii) any agreement or instrument to which Investor is a party or (iii) any law, statute, rule or regulation to which Investor is subject, or any order, judgment or decree to which Investor is subject, in the case of clauses (ii) and (iii), that would reasonably be expected to prevent Investor from fulfilling its obligations under this Agreement. |
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| 3.13. | No Advice from Sponsor. Investor has had the opportunity to review this Agreement and the transactions contemplated by this Agreement and the Letter Agreement with Investor’s own legal counsel and investment and tax advisors. Except for any statements or representations of the Sponsor or SVII explicitly made in this Agreement, Investor is relying solely on such counsel and advisors and not on any statements or representations, express or implied, of the Sponsor or any of its representatives or agents for any reason whatsoever, including without limitation for legal, tax or investment advice, with respect to this investment, the Sponsor, SVII, the Assigned Securities, the transactions contemplated by this Agreement or the securities laws of any jurisdiction. |
| 3.14. | Reliance on Representations and Warranties. Investor understands that the Assigned Securities are being offered and sold to Investor in reliance on exemptions from the registration requirements under the Securities Act, and analogous provisions in the laws and regulations of various states, and that the Sponsor is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of Investor set forth in this Agreement in order to determine the applicability of such provisions. |
| 3.15. | No General Solicitation. Investor is not subscribing for Assigned Securities as a result of or subsequent to any general solicitation or general advertising, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. |
| 3.16. | Brokers. No broker, finder or intermediary has been paid or is entitled to a fee or commission from or by Investor in connection with the acquisition of the Assigned Securities nor is Investor entitled to or will accept any such fee or commission. |
| 4. | Representations and Warranties of Sponsor. The Sponsor represents and warrants to, and agrees with, the Investor that: |
| 4.1. | Power and Authority. The Sponsor is a limited liability company duly formed and validly existing and in good standing as a limited liability company under the laws of the State of Delaware and possesses all requisite limited liability company power and authority to enter into this Agreement and to perform all of the obligations required to be performed by the Sponsor hereunder, including the assignment, sale and transfer the Assigned Securities and the assignment of the Economic Interest. |
| 4.2. | Authority. All corporate action on the part of the Sponsor and its officers, directors and members necessary for the authorization, execution and delivery of this Agreement and the performance of all obligations of the Sponsor required pursuant hereto has been taken. This Agreement has been duly executed and delivered by the Sponsor and (assuming due authorization, execution and delivery by Investor) constitutes the Sponsor’s legal, valid and binding obligation, enforceable against the Sponsor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by equitable principles of general application and except as enforcement of rights to indemnity and contribution may be limited by federal and state securities laws or principles of public policy. |
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| 4.3. | Title to Securities. The Sponsor is the record and beneficial owner of, and has good and marketable title to, the Assigned Securities held by Sponsor and will, immediately prior to the transfer of the Assigned Securities to Investor, be the record and beneficial owner of the Assigned Securities, in each case, free and clear of all liens, pledges, security interests, charges, claims, encumbrances, agreements, options, voting trusts, proxies and other arrangements or restrictions of any kind (other than transfer restrictions and other terms and conditions that apply to the Founder Shares generally and applicable securities laws). The Assigned Securities to be transferred, when transferred to Investor as provided herein, will be free and clear of all liens, pledges, security interests, charges, claims, encumbrances, agreements, options, voting trusts, proxies and other arrangements or restrictions of any kind (other than transfer restrictions and other terms and conditions that apply to the Founder Shares generally, under the Letter Agreement and applicable securities laws). The Assigned Securities are duly authorized, validly issued, fully paid and non-assessable. |
| 4.4. | No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Sponsor of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the Sponsor’s certificate of formation or the Sponsor LLC Agreement, (ii) any agreement or instrument to which the Sponsor is a party or by which it is bound (including the Letter Agreement and the Sponsor LLC Agreement) or (iii) any law, statute, rule or regulation to which the Sponsor is subject or any order, judgment or decree to which the Sponsor is subject. The Sponsor is not required under federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or self-regulatory entity in order for it to perform any of its obligations under this Agreement or transfer the Assigned Securities in accordance with the terms hereof. |
| 4.5. | No General Solicitation. The Sponsor has not offered the Assigned Securities by means of any general solicitation or general advertising within the meaning of Regulation D of the Securities Act, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. |
| 4.6. | Brokers. No broker, finder or intermediary has been paid or is entitled to a fee or commission from or by the Sponsor in connection with the sale of the Assigned Securities nor is the Sponsor entitled to or will accept any such fee or commission. |
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| 4.7. | Transfer Restrictions. Until termination of this Agreement, the Sponsor shall not transfer any of its Founder Shares representing the economic benefit of the Assigned Securities. |
| 4.8. | Reliance on Representations and Warranties. The Sponsor understands and acknowledges that Investor is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Sponsor set forth in this Agreement. |
| 4.9. | No Pending Actions. There is no action pending against the Sponsor or SVII or, to the Sponsor’s or SVII’s knowledge, threatened against the Sponsor or SVII, before any court, arbitrator or governmental authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by the Sponsor or SVII of its obligations under this Agreement. |
| 5. | Representations and Warranties of SVII. SVII represents and warrants to, and agrees with, the Investor that: |
| 5.1. | Power and Authority. SVII is an exempted company formed and validly existing and in good standing as an exempted company the laws of the Cayman islands and possesses all requisite power and authority to enter into this Agreement and to perform all of the obligations required to be performed by SVII hereunder, including the Share Issuance. |
| 5.2. | Authority. All corporate action on the part of SVII and its officers, directors and members necessary for the authorization, execution and delivery of this Agreement and the performance of all obligations of SVII required pursuant hereto has been taken. This Agreement has been duly executed and delivered by SVII and (assuming due authorization, execution and delivery by Investor) constitutes SVII’s legal, valid and binding obligation, enforceable against SVII in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by equitable principles of general application and except as enforcement of rights to indemnity and contribution may be limited by federal and state securities laws or principles of public policy. |
| 5.3. | Title to Securities. The Promote Shares have been duly authorized, and, when issued in accordance with the terms and conditions of this Agreement to Investor, will be (i) validly issued, fully paid, and non-assessable, and (ii) free and clear of all liens, pledges, security interests, charges, claims, encumbrances, agreements, options, voting trusts, proxies and other arrangements or restrictions of any kind (other than transfer and other restrictions that apply to the Promote Shares pursuant to the Joinder and generally, under applicable securities laws) The Sponsor is the record and beneficial owner of, and has good and marketable title to, the Assigned Securities held by Sponsor and will, immediately prior to the surrender and forfeiture of the Assigned Securities to SVII, be the record and beneficial owner of the Assigned Securities, in each case, free and clear of all liens, pledges, security interests, charges, claims, encumbrances, agreements, options, voting trusts, proxies and other arrangements or restrictions of any kind (other than transfer restrictions and other terms and conditions that apply to the Founder Shares generally and applicable securities laws). |
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| 5.4. | No Conflicts. The execution, delivery and performance of this Agreement and the consummation by SVII of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the Articles, (ii) any agreement or instrument to which SVII is a party or by which it is bound or (iii) any law, statute, rule or regulation to which SVII is subject or any order, judgment or decree to which SVII is subject. SVII is not required under federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or self-regulatory entity in order for it to perform any of its obligations under this Agreement. |
| 5.5. | No General Solicitation. SVII has not offered the Promote Shares by means of any general solicitation or general advertising within the meaning of Regulation D of the Securities Act, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. |
| 5.6. | Brokers. No broker, finder or intermediary has been paid or is entitled to a fee or commission from or by SVII in connection with the sale of the Promote Shares. |
| 5.7. | Reliance on Representations and Warranties. SVII understands and acknowledges that Investor is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of SVII set forth in this Agreement. |
| 5.8. | No Pending Actions. There is no action pending against the Sponsor or SVII or, to the Sponsor’s or SVII’s knowledge, threatened against the Sponsor or SVII, before any court, arbitrator or governmental authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by the Sponsor or SVII of its obligations under this Agreement. |
| 6. | Trust Account. Until the earlier of (a) the consummation of the Initial Business Combination; (b) the liquidation of the Trust Account; (c) the dissolution and winding up of SVII in accordance with the Articles; and (d) thirty-six (36) months from consummation of SVII’s IPO, SVII will maintain the investment of funds held in the Trust Account in interest-bearing United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended, which invest only in direct U.S. government treasury obligations, or maintain such funds in cash in an interest-bearing demand deposit account at a bank. |
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| 7. | Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the laws of another jurisdiction. The parties hereto hereby waive any right to a jury trial in connection with any litigation pursuant to this Agreement and the transactions contemplated hereby. With respect to any suit, action or proceeding relating to the transactions contemplated hereby, the undersigned irrevocably submit to the jurisdiction of the United States District Court or, if such court does not have jurisdiction, the New York state courts located in the Borough of Manhattan, State of New York, which submission shall be exclusive. |
| 8. | Assignment; Entire Agreement; Amendment. |
| 8.1. | Assignment. Any assignment of this Agreement or any right, remedy, obligation or liability arising hereunder by the Sponsor, SVII or Investor to any person shall require the prior written consent of the other party; provided that no such consent shall be required for any such assignment by Investor to one or more of its affiliates. |
| 8.2. | Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter thereof and merges and supersedes all prior discussions, agreements and understandings of any and every nature among them relating to the subject matter hereof. |
| 8.3. | Amendment. Except as expressly provided in this Agreement, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the party against whom enforcement of any such amendment, waiver, discharge or termination is sought. |
| 8.4. | Binding upon Successors. This Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective heirs, legal representatives, successors and permitted assigns. |
| 9. | Notices. Unless otherwise provided herein, any notice or other communication to a party hereunder shall be sufficiently given if in writing and personally delivered or sent by facsimile or other electronic transmission with copy sent in another manner herein provided or sent by courier (which for all purposes of this Agreement shall include Federal Express or another recognized overnight courier) or mailed to said party by certified mail, return receipt requested, at its address provided for herein or such other address as either may designate for itself in such notice to the other. Communications shall be deemed to have been received when delivered personally, on the scheduled arrival date when sent by next day or 2nd-day courier service, or if sent by facsimile upon receipt of confirmation of transmittal or, if sent by mail, then three days after deposit in the mail. If given by electronic transmission, such notice shall be deemed to be delivered (a) if by electronic mail, when directed to an electronic mail address at which the party has provided to receive notice; and (b) if by any other form of electronic transmission, when directed to such party. |
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| 10. | Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
| 11. | Survival; Severability |
| 11.1. | Survival. The representations, warranties, covenants and agreements of the parties hereto shall survive the closing of the transactions contemplated hereby. |
| 11.2. | Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party. |
| 12. | Headings. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. |
| 13. | Disclosure; Waiver. In connection with the entry into this agreement, SVII shall, by 9:30 a.m., New York City time, on the business day immediately following the date hereof (such date and time, the “Disclosure Time”), issue on or more press releases or file with the U.S. Securities and Exchange Commission a Current Report on Form 8-K disclosing all material terms of the transactions contemplated hereby and any other material nonpublic information that SVII, the Sponsor or any of their respective officers, directors, employees or representatives has provided to Investor at any time prior to the Disclosure Time. SVII shall make such disclosures to ensure that, as of the Disclosure Time, Investor shall not be in possession of any material, nonpublic information received from SVII, the Sponsor or any of their respective officers, directors, employees or representatives. The parties to this Agreement shall cooperate with one another to assure that such disclosure is accurate. SVII agrees that the name of the Investor shall not be included in any public disclosures related to this Agreement unless required by applicable law, regulation or stock exchange rule. Investor (i) acknowledges that the Sponsor may possess or have access to material non-public information which has not been communicated to the Investor; (ii) hereby waives any and all claims, whether at law, in equity or otherwise, that he, she, or it may now have or may hereafter acquire, whether presently known or unknown, against the Sponsor or any of SVII’s officers, directors, employees, agents, affiliates, subsidiaries, successors or assigns relating to any failure to disclose any non-public information in connection with the transaction contemplated by this Agreement, including any potential business combination involving SVII, including without limitation, any claims arising under Rule 10-b(5) of the Exchange Act; and (iii) is aware that the Sponsor is relying on the truth of the representations set forth in Section 3 of this Agreement and the foregoing acknowledgement and waiver in this Section 13, in connection with the transactions contemplated by this Agreement. |
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| 14. | Independent Nature of Rights and Obligations. Nothing contained herein, and no action taken by any party pursuant hereto, shall be deemed to constitute Investor and the Sponsor as, and the Sponsor acknowledges that Investor and the Sponsor do not so constitute, a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Investor and the Sponsor are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any matters, and the Sponsor acknowledges that Investor and the Sponsor are not acting in concert or as a group, and the Sponsor shall not assert any such claim, with respect to such obligations or the transactions contemplated by this Agreement. |
| 15. | Most Favored Nation. In the event the Sponsor or SVII has entered into or enters into one or more other non-redemption agreements before or after the execution of this Agreement in connection with the Meeting (each, an “Other Agreement”, and the counterparty thereto, an “Other Investor”), the Sponsor and SVII represent and covenant that the terms of such other agreements are not materially more favorable to such other investors thereunder than the terms of this Agreement are in respect of the Investor. To avoid doubt, the Sponsor and SVII acknowledge and agree that a ratio of Investor Shares to Assigned Securities in any Other Agreement that is more favorable to the applicable Other Investor than such ratio in this Agreement is to Investor would be materially more favorable to such Other Investor. In the event that another investor is afforded any such more favorable terms than the Investor, the Sponsor shall promptly inform the Investor of such more favorable terms in writing, and the Investor shall have the right to elect to have such more favorable terms included herein, in which case the parties hereto shall promptly amend this Agreement to effect the same. |
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| INVESTOR | ||
| By: | ||
| Name: | [ ] | |
| Title: | [ ] | |
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| COMPANY: | ||
| SPRING VALLEY ACQUISITION CORP. II | ||
| By: | ||
| Name: | ||
| Title: | ||
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| SPONSOR: | ||
| SPRING VALLEY ACQUISITION SPONSOR II, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
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EXHIBIT A
| Investor | Assigned Securities / Economic Interest Assigned (1) |
Number of Public Shares to be Held as Investor Shares (2) | |
| [●] shares of Class A ordinary shares | [●] shares of Class A ordinary shares | ||
| Address: SSN/EIN: |
| (1) | Up to [●] Founder Shares. |
| (2) | Equal to the lesser of (i) [●] Public Shares, and (ii) 9.9% of the Public Shares that are not to be redeemed, including those Public Shares subject to non-redemption agreements with other SVII shareholders similar to this Agreement on or about the date of the Meeting. |
[Exhibit A to Non-Redemption Agreement]
EXHIBIT B
FORM OF JOINDER
TO
LETTER AGREEMENT
______, 20__
Reference is made to that certain Non-Redemption Agreement and Assignment of Economic Interest, dated as of , 2024 (the “Agreement”), by and among (“Investor”), Spring Valley Acquisition Corp. II (the “Company”) and Spring Valley Acquisition Sponsor II, LLC (the “Sponsor”), pursuant to which Investor acquired securities of the Company from the Sponsor. Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Agreement.
By executing this Joinder, Investor hereby agrees, as of the date first set forth above, that Investor shall become a party to that certain Letter Agreement, dated October 12, 2022, as amended by that certain Amendment No. 1 to the Letter Agreement dated January 10, 2024, by and among the Company, the Sponsor and the Company’s officers and directors (as it exists on the date of the Agreement, the “Letter Agreement”), solely with respect to Section 5 of the Letter Agreement, and shall be bound by, and shall be subject to the restrictions set forth thereunder, the terms and provisions of such Section 5 of the Letter Agreement as an Insider (as defined therein) solely with respect to its Assigned Securities or Promote Shares, as applicable; provided, however, that the Investor shall be permitted to transfer its Assigned Securities or Promote Shares, as applicable, to its affiliates.
For the purposes of clarity, it is expressly understood and agreed that each provision contained herein, in the Letter Agreement (to the extent applicable to Investor) is between the Company and Investor, solely, and not between and among Investor and the other shareholders of the Company signatory thereto.
This Joinder may be executed in two or more counterparts, and by facsimile, all of which shall be deemed an original and all of which together shall constitute one instrument.
| [INVESTOR] | ||
| By: | ||
| Name: | ||
| Title: | ||
| ACKNOWLEDGED AND AGREED: | |||
| SPRING VALLEY ACQUISITION CORP. II | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Non-Redemption Agreement Joinder]