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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): November 6, 2023
RCF Acquisition Corp.
(Exact name of registrant as specified in its charter)
| Cayman Islands | 001-41039 | N/A | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
3109 W. 50th Street, #207
Minneapolis, MN 55410
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code: (952) 456-5300
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:
| ☐ | 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)) |
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, $0.0001 par value, and one-half of one redeemable warrant | RCFA.U | The New York Stock Exchange | ||
| Class A ordinary shares, par value $0.0001 par value | RCFA | The New York Stock Exchange | ||
| Redeemable warrants, each warrant exercisable for one Class A ordinary share, each at an exercise price of $11.50 per share | RCFA WS | The New York Stock Exchange |
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 ☒
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. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On November 6, 2023, in connection with the closing (“Closing”) of the transactions contemplated by the Securities Purchase Agreement (the “Purchase Agreement”) by and between RCF Sponsor VII LLC (the “Sponsor”) and Perception Capital Partners IV LLC (“Perception”) (described below in Item 8.01), RCF Acquisition Corp. (the “Company”, or “we”, “us” or “our”) entered into a Joinder Agreement (the “Joinder”) to that certain Registration Rights Agreement dated November 9, 2021, with the Sponsor and Perception. Pursuant the Joinder, Perception will receive the same rights and benefits with respect to its newly acquired Class A Shares (as defined below) and private placement warrants as the Sponsor has with respect to its Class A Shares and private placement warrants. The foregoing description of the Joinder does not purport to be complete and is qualified in its entirety by reference to the Joinder, a copy of which is attached as Exhibit 10.1 hereto.
The Company issued a Convertible Senior Secured Promissory Note on November 6, 2023, to Blue Capital Management Partners, LLP (“Blue Capital”) with a principal amount up to Two Million Dollars ($2,000,000) (the “Blue Capital Note”). The Blue Capital Note bears no interest and is repayable in full upon the earlier of (i) the date on which the Company consummates a Business Combination, (ii) the date of the liquidation of the Company and (iii) December 31, 2024. Concurrent with the closing of the Business Combination, any amounts outstanding under the Blue Capital Note (or any portion thereof) will automatically convert into Class A ordinary shares of the Company, par value $0.0001 per share (“Class A Shares”) at a conversion price equal to $1.00 per share, and the Sponsor will forfeit an equal number of Class A Shares that it owns pursuant to the Purchase Agreement. Additionally, from the closing of the Business Combination until the date that is eighteen (18) months after such closing, the Company has the right to purchase from Perception up to 4,533,750 of the warrants that Perception acquired from Sponsor upon the Closing of the Purchase Agreement (described below in Item 8.01), at a price of $0.10 per private placement warrant.
Under the Blue Capital Note, Blue Capital will fund each of the following amounts to the Company no later than the date set forth below:
| a. | $500,000 on November 24, 2023; |
| b. | $200,000 on December 15, 2023; |
| c. | $300,000 within fifteen business days of the Company announcing it has executed a definitive agreement for a Business Combination; |
| d. | $500,000 within fifteen business days after a registration statement relating to the Business Combination has been filed with the U.S. Securities and Exchange Commission; and |
| e. | $50,000 on the first day of each month, beginning on the date that is three months after the Compnany’s stockholders meeting to approve the extended deadline for the consummation of the Business Combination; provided, however, that the maximum amount of drawdowns outstanding under this Note may not exceed Two Million Dollars ($2,000,000). |
If immediately prior to the closing of the Business Combination, the Maximum Amount has not yet been paid to the Company, Blue Capital shall have the right to pay any remaining amounts to the Company before the closing of the Business Combination. If the Company has not entered into a definitive agreement for a Business Combination by February 29, 2024 or there is an Event of Default (as defined in the Blue Capital Note), the Company must issue to Blue Capital 173,913 Class A Shares, within five business days of the closing of the Business Combination.
Under the Blue Capital Note, the Company is also subject to certain covenants and other agreements including a covenant not to create, incur, assume, permit to exist or otherwise become liable with respect to any indebtedness, except indebtedness under the Blue Capital Note without Blue Capital’s approval and the right of Blue Capital to nominate one independent director to serve on the Company’s board. To secure the Company’s obligations under the Blue Capital Note, the Company granted to Blue Capital a security interest in collateral, which includes (i) all Accounts (other than the Trust Account), Chattel Paper, Deposit Accounts, Documents, Equipment, General Intangibles, Instruments, Inventory, Investment Property, Letter of Credit Rights and any Supporting Obligations, as each such term is defined in the Uniform Commercial Code (UCC), including any pledged stock, (ii) any Commercial Tort Claims (as defined in the UCC), (iii) all books and records pertaining to the foregoing, (iv) all other goods (including but not limited to fixtures) and personal property of the Company whether tangible or intangible and wherever located and (v) to the extent not otherwise included, all proceeds of the foregoing. The foregoing description of the Blue Capital Note does not purport to be complete and is qualified in its entirety by reference to the Blue Capital Note, a copy of which is attached as Exhibit 10.2 hereto.
Information included in Item 5.02 regarding the Amended and Restated Letter Agreement is incorporated by reference into this item to the extent required.
Item 1.02 Termination of a Material Definitive Agreement.
Also on November 6, 2023, as required by the Purchase Agreement, the Company entered into an Omnibus Termination and Release Agreement with the Sponsor (the “Termination Agreement”). Pursuant to the Termination Agreement, the Company terminated the following agreements in connection with the Closing of the transactions contemplated by the Purchase Agreement:
| ● | Administrative Services Agreement, dated November 9, 2021, by and between the Company and the Sponsor; |
| ● | Amended and Restated Convertible Promissory Note, dated as of May 11, 2023 (the “Working Capital Promissory Note”) issued by the Company to the Sponsor, pursuant to which the Company agreed to pay the Sponsor the principal balance advanced by Sponsor to the Company under the Working Capital Promissory Note, up to five million dollars ($5,000,000), upon the earlier of May 15, 2024 and the consummation of the Company’s initial business combination, unless accelerated, in each case upon the terms and subject to the conditions set forth in the Working Capital Promissory Note; and |
| ● | Convertible Promissory Note, dated as of May 11, 2023 (the “Extension Promissory Note”, together with the Working Capital Promissory Note, the “Promissory Notes”) issued by the Company to the Sponsor, pursuant to which the Company agreed to pay the Sponsor the principal balance advanced by Sponsor to the Company under the Extension Promissory Note, up to three million six hundred thousand dollars ($3,600,000), upon the earlier of the consummation of the Company’s initial business combination and the liquidation of the Company, in each case upon the terms and subject to the conditions set forth in the Extension Promissory Note. |
In connection with the termination of the Administrative Services Agreement and the Promissory Notes, the Sponsor forgave and discharged all outstanding fees owed under the Administrative Services Agreement and agreed to cancel and waive all indebtedness under the Promissory Notes. The Termination Agreement also includes mutual releases of the parties. The foregoing description of the Termination Agreement does not purport to be complete and is qualified in its entirety by reference to the Termination Agreement, a copy of which is attached as Exhibit 10.3 hereto.
The information included in Item 5.02 regarding termination of the Employment Agreement is incorporated by reference in this item to the extent required.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-balance Sheet Arrangement of a Registrant.
The information included in Item 1.01 regarding the Blue Capital Note is incorporated by reference in this item to the extent required.
Item 3.02. Unregistered Sales of Equity Securities.
The information included in Item 1.01 regarding the Blue Capital Note is incorporated by reference in this item to the extent required. The Class A Shares that may be issued pursuant to the Blue Capital Note will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance on the exemption from registration requirements thereof provided by Section 4(a)(2) of the Securities Act.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Director and Officer Resignations and Appointments
In connection with the Closing of the transactions contemplated by the Purchase Agreement, on November 6, 2023: (i) each of the Company’s then-current directors, James McClements, Sunny S. Shah, Thomas M. Boehlert, Hugo Dryland, Elodie Grant Goodey, Timothy Baker, and Daniel Malchuk, resigned as directors, and the Company accepted their resignations; (ii) the vacancies on the Company’s board of directors caused by such resignations were filled by Scott Honour, Rick Gaenzle, R. Rudolph Reinfrank, Thomas J. Abood and Karrie Willis (the “New Directors”); (iii) each of the Company’s then-current officers, Sunny S. Shah, Thomas M. Boehlert and Rebecca Coffelt, resigned as Chief Executive Officer, Chief Financial Officer, and Secretary, respectively, and the Company accepted their resignations; and (iv) the appointments of Rick Gaenzle as Chief Executive Officer, John Stanfield as Chief Financial Officer and Secretary, Scott Honour as Chairman of the Board, and Tao Tan as President (the “New Officers”) became effective. R. Rudolph Reinfrank, Thomas J. Abood and Karrie Willis will serve as members of the Company’s Audit Committee, Nominating Committee and Compensation Committee.
Rick Gaenzle, age 58, will serve as our Chief Executive Officer. Mr. Gaenzle has over 30 years of private equity investment and corporate finance experience; he is a co-founder and currently serves as a Managing Director of Gilbert Global Equity Capital, L.L.C., the principal investment advisor to Gilbert Global Equity Partners, L.P. and related entities, a $1.2 billion leveraged buyout and private equity fund. Mr. Gaenzle has spent the last 28 years at Gilbert Global and its predecessor entity, completing over 110 direct equity investments, co-investments and add-on acquisitions for portfolio companies. He also serves as the Chief Executive Officer and a member of the board of directors of Perception Capital Corp. III, and previously served in that same role on Perception Capital Corp. II. Previously, Mr. Gaenzle was a Principal of Soros Capital L.P., the principal venture capital and leveraged equity entity of the Quantum Group of Funds and a principal advisor to Quantum Industrial Holdings Ltd. Prior to joining Soros Capital, Mr. Gaenzle held various positions at PaineWebber Inc. Mr. Gaenzle currently serves as an Operating Partner of NPGand Chairman of Lake Street Homes, a single-family rental investment vehicle. Mr. Gaenzle previously served on the boards of CPM Holdings, Inc., True Temper Corp, Optical Capital Group, Inc., Birch Telecommunications, Inc., E-via S.p.A., Tinka-ServiCos de Consultoria, S.A., the LaserSharp Corporation and Sustainable Opportunities Acquisition Corp. (“SOAC”), where he also served as Chairman of the Audit Committee. Mr. Gaenzle holds a B.A. from Hartwick College and an M.B.A. from Fordham University.
Tao Tan, age 38, will serve as our President. Mr. Tan has nearly 15 years of experience across finance, strategy and business transformation. He serves as Co-President of Perception Capital Corp. III, and previously served as Co-President of Perception Capital Corp. II. Prior to joining Perception, Mr. Tan was an officer and a senior advisor to multiple investing and operating entities. Until 2020, Mr. Tan was an Associate Partner at McKinsey & Company’s New York office. At McKinsey, Mr. Tan led teams across the firm’s transformation and private equity & principal investor practices, where he drove comprehensive performance transformation and turnaround programs for companies with revenues ranging from $200 million to $25 billion across multiple industries and continents. Most recently, Mr. Tan helped found, launch and lead McKinsey’s SPAC service line, and served in a leadership role in McKinsey’s COVID-19 client response team. Prior to McKinsey, Mr. Tan was a Senior Associate at Rose Tech Ventures, where he led the firm’s first-round investment in JUMP Bikes, which was subsequently sold to Uber in 2018. Prior to Rose Tech Ventures, Mr. Tan served in investment banking and capital markets roles at Bank of America Merrill Lynch and Lehman Brothers. Mr. Tan is a member of the Council on Foreign Relations and of the Economic Club of New York. He serves as Co-President of Perception Capital Corp. II, Mr. Tan received his B.A. and his M.B.A, both with honors, from Columbia University in the City of New York, where he was an Erwin Wolfson Scholar and a Toigo Foundation Fellow.
John Stanfield will serve as our Chief Financial Officer. Mr. Stanfield, age 42, has significant experience with U.S. GAAP, finance, operations, and taxation demonstrated over several years and several billion dollars of enterprise value in the private equity and alternative asset industry. He has been a Certified Public Accountant since 2006 and has served as senior principal with Stanfield & Associates, a public accounting firm specializing in the private equity industry and international taxation, since 2011. Mr. Stanfield has also served as Chief Executive Officer at Aequum Capital, LLC, a tech-enabled commercial lender, since August 2023 and Chief Financial Officer at Welsbach Technology Metals Acquisition Corp. (Nasdaq:WTMAU) since December 2021. He held the role of Co-President at Aequum from September 2021 to August 2023. Previously, he served as Chief Executive Officer of Lorem LLC, a provider of accounting services for special purpose acquisition companies, from May 2021 to September 2022, and as Chief Financial Officer at LQD Business Finance, a national fintech startup, from 2018 to September 2020. Mr. Stanfield holds a B.A. and an M.S.T. from the University of Illinois Urbana-Champaign and an M.S.A from DePaul University.
At the Closing, the Sponsor, Perception, the New Officers, and the New Directors entered into an Amended and Restated Letter Agreement, which amends and restates the Letter Agreement, dated November 9, 2021, by and among the Company, the Sponsor, and the Company’s former executive officers and directors and their affiliates. The Amended and Restated Letter Agreement provides for, among other things, (i) Perception to be subject to the same transfer, voting, and non-redemption restrictions with respect to its Class A and Shares and private placement warrants as the Sponsor was subject prior to the Closing with respect to such Class A Shares and private placement warrants, (ii) the removal of the contractual transfer restrictions from the Class A Shares and private placement warrants retained by the Sponsor, and (iii) Perception’s assumption of the Sponsor’s indemnification obligations under Section 4 of the original Letter Agreement. The foregoing description of the Amended and Restated Letter Agreement does not purport to be complete and is qualified in its entirety by reference to the Amended and Restated Letter Agreement, a copy of which is attached as Exhibit 10.4 hereto and is incorporated herein by reference.
In addition, each of the New Officers and New Directors are expected to enter into a standard indemnity agreement. The form of the Company’s standard indemnification agreement is included as Exhibit 10.5 to the Registration Statement on Form S-1 (File No. 333-260462) filed by the Company with the Securities and Exchange Commission on October 25, 2021.
Other than the foregoing, none of the New Directors or New Officers are party to any arrangement or understanding with any person pursuant to which he or she was appointed as director, nor is he or she party to any transactions required to be disclosed under Item 404(a) of Regulation S-K involving the Company. None of our directors or officers will receive any cash compensation for services rendered to us.
Termination of Employment Agreement
In connection with Sunny Shah’s resignation as Chief Executive Officer, pursuant to the Purchase Agreement, the Company and Mr. Shah entered into a letter agreement on November 6, 2023 (the “Employment Termination Date”), terminating his Employment Agreement with the Company dated September 1, 2022 (the “Employment Agreement”). The letter agreement between Mr. Shah and the Company provides that the Company will (i) pay the sum of $12,500 to Mr. Shah as a payment in lieu of notice owed under the Employment Agreement through the next available payroll following the Employment Termination Date and (ii) make a payment in lieu of Mr. Shah’s accrued but untaken holiday entitlement.
The foregoing description of the letter agreement does not purport to be complete and is qualified in its entirety by reference to the letter agreement, a copy of which is attached as Exhibit 10.5 hereto.
Item 8.01. Other Events.
On November 6, 2023, the Sponsor and Perception consummated the transactions contemplated by the Purchase Agreement pursuant to which, among other things, Perception acquired certain of the Sponsor’s (i) Class A Shares and (ii) private placement warrants, subject to the terms and conditions described in the Purchase Agreement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURE
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 hereunto duly authorized.
| Date: November 8, 2023 | RCF ACQUISITION CORP. | |
| By: | /s/ Rick Gaenzle | |
| Name: | Rick Gaenzle | |
| Title: | Chief Executive Officer | |
Exhibit 10.1
JOINDER AGREEMENT
This Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by Perception Partners IV LLC, a Delaware limited liability company (the “Buyer”) in accordance with Section 5.2 of that certain Registration Rights Agreement, dated as of November 9, 2021 (the “RRA”) by and among RCF Acquisition Corp., a Cayman Islands exempted company (the “Company”), RCF VII Sponsor LLC, a Delaware limited liability company (the “Sponsor”) and each of the other parties listed on the signature pages thereto as “Holders”. Capitalized terms used but not defined herein shall have the meanings given to such terms in the RRA.
Buyer, as a Permitted Transferee in accordance with Section 5.2 of the RRA, has acquired from Sponsor an aggregate of 1,673,750 Founder Shares and 9,067,500 Private Placement Warrants, pursuant to that certain Securities Purchase Agreement, dated as of November 2, 2023, by and between the Sponsor and the Buyer.
Buyer and the Company each hereby acknowledges, agrees and confirms that, by the execution of this Joinder Agreement, Buyer shall be deemed to be a party to, and a “Holder” under, the RRA as of the date hereof and shall be entitled to all of the rights, benefits, privileges, terms, conditions and covenants of the RRA in the same manner as if Buyer was an original signatory to the RRA. Buyer hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions, and conditions, representations and warranties contained in the RRA.
November 6, 2023
| COMPANY: | ||
| RCF ACQUISITION CORP. | ||
| By: | /s/ Sunny S. Shah | |
| Name: | Sunny S. Shah | |
| Title: | Chief Executive Officer and Director | |
| BUYER: | ||
| Perception Partners IV LLC | ||
| By: | Macabel Holdings, Inc., its Sole Member | |
| By: | /s/ Rick Gaenzle | |
| Name: | Rick Gaenzle | |
| Title: | Authorized Signatory | |
| BUYER: | ||
| Perception Partners IV LLC | ||
| By: | Macabel Holdings, Inc., | |
| Its: | Sole Member | |
| By: | /s/ Rick Gaenzle | |
| Name: | Rick Gaenzle | |
| Title: | Authorized Signatory | |
[Signature Page to Joinder Agreement]
Exhibit 10.2
THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE MAKER THAT SUCH REGISTRATION IS NOT REQUIRED.
CONVERTIBLE SENIOR SECURED PROMISSORY NOTE
| Principal Amount: Up to $2,000,000 | Dated as of November 6, 2023 |
RCF Acquisition Corp., a Cayman Islands exempted company (the “Maker”), promises to pay to the order of Blue Capital Management Partners, LLP, or its registered assigns or successors in interest (the “Payee”), the principal sum of Two Million Dollars ($2,000,000) or such lesser amount as has been advanced by Payee to Maker and remains unpaid under this Note on the Maturity Date (as defined below) in lawful money of the United States of America, on the terms and conditions described below. Subject to Section 17, all payments on this Note shall be made by check or wire transfer of immediately available funds to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Note. Perception Capital Partners IV LLC (“Perception”) is a party to this Note for the limited purposes set herein.
| 1. | Principal. The entire unpaid principal balance of this Note shall be payable on the earliest of (such date, the “Maturity Date”): (i) the date on which Maker consummates a Business Combination (as such term is defined in the Amended and Restated Letter Agreement) (the “Closing Date”), (ii) the date of the liquidation of Maker and (iii) December 31, 2024. The principal balance may not be prepaid. Under no circumstances shall any individual, including but not limited to any officer, director, employee or shareholder of the Maker, be obligated personally for any obligations or liabilities of the Maker hereunder. This Note shall be secured by all of the Collateral (as defined below) and shall be senior secured indebtedness of the Maker at all times. |
| 2. | Private Placement Warrants. From the closing of the Business Combination until the date that is eighteen (18) months after such closing, Maker shall have the right to purchase from Perception up to 4,533,750 warrants issued in a private placement (the “Private Placement Warrants”) that occurred prior to the closing of the IPO were deposited, as described in greater detail in Maker’s Registration Statement on Form S-1 (333-260462) filed with the U.S. Securities and Exchange Commission (the “SEC”) in connection with the IPO (the “Registration Statement”), at a price of $0.10 per Private Placement Warrant; provided that such right shall not be exercised unless and until such transfer would be deemed a “Permitted Transfer” with respect to such Private Placement Warrants as such term is defined in the Amended and Restated Letter Agreement, dated November 3, 2023, among Perception and the other parties thereto (the “Amended and Restated Letter Agreement”). |
| 3. | Funding Schedule. Without any further action on the part of the Maker, Payee shall fund each of the following amounts via wire transfer to Maker (or its designee) no later than the date set forth below: |
| a. | $500,000 on November 24, 2023; |
| b. | $200,000 on December 15, 2023; |
| c. | $300,000 within fifteen business days of Maker announcing it has executed a definitive agreement for a Business Combination; |
| d. | $500,000 within fifteen business days after a registration statement relating to the Business Combination has been filed with the U.S. Securities and Exchange Commission; and |
| e. | $50,000 on the first day of each month, beginning on the date that is three months after the Maker’s stockholders meeting to approve the extended deadline for the consummation of the Business Combination; provided, however, that the maximum amount of drawdowns outstanding under this Note may not exceed Two Million Dollars ($2,000,000) (such amount, the “Maximum Amount”). |
If immediately prior to the closing of the Business Combination, the Maximum Amount has not yet been paid to the Maker, the Payee shall have the right to pay any remaining amounts to the Maker before the closing of the Business Combination.
| 4. | Use of Proceeds. The amounts funded by Payee to Maker shall be used for the purpose of (a) making contributions to the Trust Account in connection with extending the period of time that Maker has to complete an initial business combination as described in the proxy statement to be filed by Maker with the SEC or (b) funding working capital requirements in connection with anticipated costs of pursuing a Business Combination. |
| 5. | Interest. No interest shall accrue on the unpaid principal balance of this Note. |
| 6. | Application of Payments. All payments received by Payee pursuant to this Note shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorneys’ fees (which payment shall not reduce the principal balance of this Note), then to the reduction of the unpaid principal balance of this Note. Any and all payments by or on account of any obligation of Maker under this Note shall be made without deduction or withholding for any taxes, except as required by applicable law. If any applicable law (as determined in good faith by Maker or an agent thereof) requires the deduction or withholding of any tax from any such payment, then Maker (or an agent thereof) shall be entitled to make such deduction or withholding and any amounts so deducted or withheld shall be treated as having been paid to the Payee, and such withheld amounts shall be added to the principal balance of this Note. Payee shall, if reasonably requested by Maker, deliver to Maker such documentation prescribed by applicable law or reasonably requested by Maker as will enable Maker to determine whether or not payments made to Payee are subject to withholding or information reporting requirements. |
| 7. | Events of Default. The following shall constitute an event of default (“Event of Default”): |
| a. | Failure to Make Required Payments. Failure by Maker to pay the principal amount due pursuant to this Note within five (5) business days of the Maturity Date. |
| b. | Voluntary Bankruptcy, Etc. The commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action by Maker in furtherance of any of the foregoing. |
| c. | Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days. |
| d. | Covenant Default. Maker shall default in the performance or observance of any of its covenants contained in Section 19 of this Note, and such default shall continue for a period of 30 days (or such longer period of time as is reasonably required to cure such default, so long as Maker promptly commences and diligently pursues such cure) after the date on which written notice of such default shall have been given by Payee to Maker. |
| 8. | Remedies. |
| a. | Upon the occurrence of an Event of Default specified in Section 7(a) or Section 7(d) hereof, Payee may, by written notice to Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding. |
| b. | Upon the occurrence of an Event of Default specified in Sections 7(b) or 7(c), the unpaid principal balance of this Note, and all other amounts payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part of Payee. |
| 9. | Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to this Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof or any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee. |
| 10. | Unconditional Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to Maker or affecting Maker’s liability hereunder. Any failure of Payee to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time and from time to time thereafter. Payee may accept late payments, or partial payments, even though marked “payment in full” or containing words of similar import or other conditions, without waiving any of its rights. |
| 11. | Notices. All notices, statements or other documents which are required or contemplated by this Note shall be: in writing and delivered (a) personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (b) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party and (c) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one business day after delivery to an overnight courier service or five calendar days after mailing if sent by mail. |
| 12. | Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF. |
| 13. | Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. |
| 14. | Trust Waiver. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any distribution of or from the trust account established in which the proceeds of the IPO conducted by the Maker (including the deferred underwriters discounts and commissions) and the proceeds of the sale of the warrants issued in a private placement in connection with the IPO were deposited (the “Trust Account”), as described in greater detail in the registration statement and prospectus filed with the SEC in connection with the IPO, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the trust account for any reason whatsoever. |
| 15. | Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker, the Payee, and Perception. |
| 16. | Assignment. This Note binds and is for the benefit of the successors and permitted assigns of Maker, the Payee, and Perception. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void; provided that Payee may transfer its rights and obligations to an affiliate of Payee or to any entity that may make any of the advances set forth in Section 3 without the consent of Maker or Perception or compliance with Section 18. The assignment or transfer of this Note shall be effective only upon surrender of the original Note for registration of assignment or transfer, duly endorsed, or accompanied by a duly executed written instrument of assignment or transfer in form satisfactory to the Maker. Thereupon, a new Note for like principal amount will be issued to, and registered in the name of, the assignee or transferee. Principal is payable only to the registered holder of the Note. |
| 17. | Additional Issuance; Conversion. |
| a. | Additional Issuance. If Maker has not entered into a definitive agreement for a Business Combination by February 29, 2024 or there is an Event of Default, regardless of whether subsequently remedied, Maker shall issue to Payee 173,913 Class A ordinary shares of Maker, par value $0.0001 per share (“Ordinary Shares”), within five business days of the closing of the Business Combination. |
| b. | Conversion. Concurrent with the closing of the Business Combination, any amounts outstanding under this Note (or any portion thereof) will automatically convert into Ordinary Shares at a conversion price (the “Conversion Price”) equal to $1.00 per share (“Conversion Shares”). The conversion shall be deemed to have been made immediately prior to the close of business on the date of the surrender of this Note and the person or persons entitled to receive the Conversion Shares upon such conversion shall be treated for all purposes as the record holder or holders of such Conversion Shares as of such date. Each such newly issued Conversion Share shall include a restricted legend that contemplates the same restrictions as the Private Placement Warrants under the Amended and Restated Letter Agreement. For each Conversion Share issued, Perception shall instruct RCF VII SPONSOR LLC to surrender to Maker a corresponding number of Ordinary Shares. Maker agrees to amend its Registration Rights Agreement dated November 9, 2021to provide that the Conversion Shares shall be Registrable Securities as defined therein. |
| 18. | Transfer of this Note or Securities Issuable on Conversion. With respect to any sale or other disposition of this Note, except as provided in Section 16, or securities into which this Note may be converted, Payee shall give written notice to Maker prior thereto, describing briefly the manner thereof, together with (i) except for a Permitted Transfer, in which case the requirements in this clause (i) shall not apply, a written opinion reasonably satisfactory to Maker in form and substance from counsel reasonably satisfactory to Maker to the effect that such sale or other distribution may be effected without registration or qualification under any federal or state law then in effect and (ii) a written undertaking executed by the desired transferee reasonably satisfactory to Maker in form and substance agreeing to be bound by the restrictions on transfer contained herein. Upon receiving such written notice, reasonably satisfactory opinion, or other evidence, and such written acknowledgement, Maker, as promptly as practicable, shall notify Payee that Payee may sell or otherwise dispose of this Note or such securities, all in accordance with the terms of the note delivered to Maker. If a determination has been made pursuant to this Section 18 that the opinion of counsel for Payee, or other evidence, or the written acknowledgment from the desired transferee, is not reasonably satisfactory to Maker, Maker shall so notify Payee promptly after such determination has been made. Each Note thus transferred shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with the Securities Act, unless in the opinion of counsel for Maker such legend is not required in order to ensure compliance with the Securities Act. Maker may issue stop transfer instructions to its transfer agent in connection with such restrictions. Subject to the foregoing, transfers of this Note shall be registered upon registration on the books maintained for such purpose by or on behalf of Maker. Prior to presentation of this Note for registration of transfer, Maker shall treat the registered holder hereof as the owner and holder of this Note for the purpose of receiving all payments of principal hereon and for all other purposes whatsoever, whether or not this Note shall be overdue and Maker shall not be affected by notice to the contrary. For purposes hereof “Permitted Transfer” shall have the same meaning as any transfer that would be permitted with respect to the Founder Shares under the Amended and Restated Letter Agreement. |
| 19. | Covenants and Other Agreements. |
| a. | Maker shall seek Payee’s approval for any expenditure that exceeds the transaction budget provided to Payee from Maker by more than 10% by line item, or in the aggregate, which such approval shall not be unreasonably withheld, conditioned or delayed. |
| b. | Maker shall use commercially reasonable efforts to inform Payee of its cumulative expenditures within 15 calendar days of the end of each calendar month and provide the Payee with any other information it reasonably requests with respect to the expenditures and operation of the Maker. |
| c. | Payee shall have the right to nominate one independent director to serve on Maker’s board upon the execution of this Note. |
| d. | Maker shall seek Payee’s approval prior to entering into a definitive agreement with respect to a Business Combination, which approval shall not be unreasonably withheld, conditioned or delayed. |
| e. | Maker shall not create, incur, assume, permit to exist or otherwise become liable with respect to any indebtedness, except indebtedness under this Note without Payee’s approval, which approval shall not be unreasonably withheld, conditioned or delayed. |
| f. | Maker shall keep the Collateral free and clear of all liens other than, the security interest granted to Payee under this Note pursuant to Section 20 below, liens for taxes or other governmental charges which are not yet due and payable or which are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted (which proceedings prevent the forfeiture or sale of the affected property and any material interference with the use thereof by Maker, in each case for the duration of such proceedings) and for which adequate reserves have been established in accordance with generally accepted accounting principles and warehousemen’s, mechanic’s, materialmen’s, carriers’ or other like liens created by operation of law securing amounts incurred in the ordinary course of business which are not yet due and payable or which are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted (which proceedings prevent the forfeiture or sale of the affected property and any material interference with the use thereof by Maker, in each case for the duration of such proceedings) and for which adequate reserves have been established in accordance with generally accepted accounting principles. |
| 20. | Security Interest. |
| a. | To secure all obligations of Maker to Payee under this Note, Maker hereby grants, pledges and hypothecates to Payee for its benefit a continuing security interest in and to, a lien upon and right of set-off against, all presently existing and hereafter acquired or arising Collateral (as defined below). Such security interest shall attach to all Collateral without further act on the part of Maker or Payee. |
| b. | As used herein, “Collateral” shall mean all of the following property now owned or at any time hereafter acquired by Maker or in which Maker now has or at any time in the future may acquire any right, title or interests including: (i) all Accounts (other than the Trust Account), Chattel Paper, Deposit Accounts, Documents, Equipment, General Intangibles, Instruments, Inventory, Investment Property, Letter of Credit Rights and any Supporting Obligations, as each such term is defined in the UCC (as defined below), including any pledged stock, (ii) any Commercial Tort Claims (as defined in the UCC), (iii) all books and records pertaining to the foregoing, (iv) all other goods (including but not limited to fixtures) and personal property of Maker, whether tangible or intangible and wherever located and (v) to the extent not otherwise included, all proceeds of the foregoing. |
| c. | Maker authorizes Payee to file any and all financing statements Payee deems necessary or appropriate to perfect the security interest granted herein and to describe the Collateral as all assets of Maker or words of similar import. Maker agrees to take any and all further steps and execute and deliver to Payee any and all documents reasonably requested by Payee which are necessary or appropriate to perfect the security interests granted herein. Following the occurrence of any Event of Default, subject to Section 8, Payee shall have all of the rights and remedies of a secured party under the Uniform Commercial Code as from time to time in effect in the State of New York or, in the event that, by reason of mandatory provisions of any applicable law, any of the attachment, perfection or priority of Payee’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the state of New York, the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions (collectively, the “UCC”). |
[Signature page follows]
IN WITNESS WHEREOF, each of Maker and Perception, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
| RCF ACQUISITION CORP. | ||
| By: | /s/ Rick Gaenzle | |
| Name: | Rick Gaenzle | |
| Title: | Chief Executive Officer | |
| PERCEPTION CAPITAL PARTNERS IV LLC | ||
| By: Macabel Holdings, Inc., its Sole Member | ||
| By: | /s/ Rick Gaenzle | |
| Name: | Rick Gaenzle | |
| Title: | Authorized Signatory | |
[Signature Page to Note]
Acknowledged and agreed as of the date first above written.
| BLUE CAPITAL MANAGEMENT PARTNERS, LLP | ||
| By: | /s/ Andrew Cavaghan | |
| Name: | Andrew Cavaghan | |
| Title: | Managing Partner | |
[Signature Page to Note]
Exhibit 10.3
OMNIBUS TERMINATION AND RELEASE
THIS OMNIBUS TERMINATION AND RELEASE (this “Agreement”) is made as of November 6, 2023, by and between RCF Acquisition Corp., a Cayman Islands exempted company (the “Company”) and RCF VII Sponsor LLC, a Delaware limited liability company (the “Sponsor”, and together with the Company, the “Parties”).
RECITALS
WHEREAS, the Company and the Sponsor are parties to that certain Administrative Services Agreement, dated as of November 9, 2021 (the “Administrative Services Agreement”);
WHEREAS, the Company issued an amended and restated convertible promissory note, dated as of May 11, 2023 (the “Working Capital Promissory Note”) to the Sponsor, pursuant to which the Company agreed to pay the Sponsor the principal balance advanced by Sponsor to the Company under the Working Capital Promissory Note, up to five million dollars ($5,000,000), upon the earlier of May 15, 2024 and the consummation of the Company’s initial business combination, unless accelerated, in each case upon the terms and subject to the conditions set forth in the Working Capital Promissory Note;
WHEREAS, the Company issued that certain convertible promissory note, dated as of May 11, 2023 (the “Extension Promissory Note”, together with the Working Capital Promissory Note, the “Promissory Notes”) to the Sponsor, pursuant to which the Company agreed to pay the Sponsor the principal balance advanced by Sponsor to the Company under the Extension Promissory Note, up to three million six hundred thousand dollars ($3,600,000), upon the earlier of the consummation of the Company’s initial business combination and the liquidation of the Company, in each case upon the terms and subject to the conditions set forth in the Extension Promissory Note;
WHEREAS, the Sponsor and Perception Capital Partners IV LLC, a Delaware limited liability company (the “Purchaser”) are parties to a Securities Purchase Agreement, dated as of November 2, 2023 (“Securities Purchase Agreement”), pursuant to which, as a material inducement to Purchaser’s agreement to enter into the Securities Purchase Agreement and as a condition to Purchaser’s obligation to consummate the transactions contemplated by the Securities Purchase Agreement, Sponsor agreed to terminate the Administrative Services Agreement and both of the Promissory Notes and to cancel and waive all Indebtedness (as defined in the Securities Purchase Agreement) under the Promissory Notes;
WHEREAS, in furtherance of the Securities Purchase Agreement, each of the Sponsor and Company wishes to terminate the Administrative Services Agreement and the Promissory Notes and to release and discharge all rights, liabilities and obligations thereunder.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
| 1. | Effective as of the date of this Agreement: (a) each of the Promissory Notes and all rights and obligations of the Parties arising under each of the Promissory Notes (including, without limitation, all provisions of such instruments that, expressly by their nature or otherwise, were intended to survive cancellation or termination) is canceled in its entirety and terminated, automatically, without further action by either of the Parties; (b) each of the Parties, on behalf of itself and its Related Parties (as defined below) hereby forever waives, releases and discharges, to the fullest extent permitted by applicable law, the other Party and its respective Related Parties, from and against any and all actions, causes of action, claims, demands, damages, judgments, liabilities, obligations, debts, dues and suits of every kind, nature and description whatsoever, whether now known or unknown, vested or contingent, suspected or unsuspected, concealed or hidden, now existing or hereafter arising directly or indirectly under the Promissory Notes; and (c) the parties to the Promissory Notes shall have no further rights, obligations or liabilities thereunder or relating thereto. The Sponsor will promptly return to the Company the original of the Promissory Notes and hereby authorizes the Company to mark such document “cancelled”. Sponsor represents and warrants that (i) the Promissory Notes are unsecured and it does not have any security interest in and liens on any property or assets of the Company and (ii) the Promissory Notes have not been converted into any equity of the Company as of the date hereof. |
| 2. | Effective as of the date of this Agreement: (a) the Administrative Services Agreement and all rights and obligations of the Parties thereunder, including any past fees owed to the Sponsor thereunder, is canceled in its entirety and terminated, automatically, without further action by either of the Parties; and (b) the Administrative Services Agreement shall be of no further force or effect in any manner whatsoever, and no Party will have any rights, obligations or liabilities of any nature thereunder. |
| 3. | Each of the Company and the Sponsor, on behalf of itself and any other person or entity claiming on behalf of or through the Company or the Sponsor (as applicable), does forever release and discharge the other Party, together with such Party’s officers, members, managers, partners, directors, agents, representatives, employees, advisor, successors and assigns (collectively, its “Related Parties”), to the fullest extent permitted by law, from any and all claims, causes of action, suits, covenants, fees, expenses, costs, attorney fees, indemnities and obligations of every kind and nature, penalties, payments, assessments, damages or demands of any kind whatsoever, whether arising under law, equity, tort, contract, regulation, rule, statute or ordinance, known or unknown, foreseen or unforeseen, liquidated or unliquidated, that the Company or the Sponsor either has or has had up to and including the date of this Agreement arising out of or relating to the Administrative Services Agreement and/or the Promissory Notes. |
| 4. | This Agreement constitutes the entire agreement and understanding of the Parties in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. |
| 5. | This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns and legal representatives. |
| 6. | This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws rules. To the fullest extent permitted by the applicable law, the Parties hereby irrevocably and unconditionally: (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the New York Court and not in any state or federal court in the United States of America or any court in any other country; (b) consent to submit to the exclusive jurisdiction of the New York Court for purposes of any action or proceeding arising out of or in connection with this Agreement; (c) waive any objection to the laying of venue of any such action or proceeding in the New York Court; and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the New York Court has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial. |
| 7. | Following the date of this Agreement, the Parties shall, and shall cause their respective affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement. |
| 8. | This Agreement may be executed in several counterparts or by separate instruments and by facsimile transmission or by electronic mail in “portable document format” (“.pdf”) and all of such counterparts and instruments shall constitute one agreement, binding on all of the Parties. |
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed the foregoing Agreement as of the date first written above.
| RCF VII SPONSOR LLC, a Delaware limited liability company | ||
| By: | RESOURCE CAPITAL FUND VII L.P. | |
| Managing Member of RCF VII Sponsor LLC | ||
| By: | RCFM GP L.L.C. | |
| General Partner of Resource Capital Fund VII L.P. | ||
| By: | /s/ Mason Hills | |
| Name : | Mason Hills | |
| Title: | General Counsel | |
| RCF ACQUSITION CORP. | ||
| By: | /s/ Sunny S. Shah | |
| Name: | Sunny S. Shah | |
| Title: | Chief Executive Officer | |
[Signature Page to Omnibus Termination and Release]
IN WITNESS WHEREOF, the undersigned has executed the foregoing Agreement as of the date first written above.
| RCF VII SPONSOR LLC, a Delaware limited liability company | ||
| By: | RESOURCE CAPITAL FUND VII L.P. | |
| Managing Member of RCF VII Sponsor LLC | ||
| By: | RCFM GP L.L.C. | |
| General Partner of Resource Capital Fund VII L.P. | ||
| By: | /s/ Mason Hills | |
| Name : | Mason Hills | |
| Title: | General Counsel | |
| RCF ACQUSITION CORP. | ||
| By: | /s/ Sunny S. Shah | |
| Name: | Sunny S. Shah | |
| Title: | Chief Executive Officer | |
[Signature Page to Omnibus Termination and Release]
Exhibit 10.4
November 6, 2023
RCF Acquisition Corp.
1400 Sixteenth Street
Suite 200
Denver, CO 80202
| Re: | Insider Agreement |
Ladies and Gentlemen:
Reference is made to the letter agreement, dated November 9, 2021 (“Prior Letter Agreement”), entered into in connection with the initial public offering (the “Public Offering”) of RCF Acquisition Corp., a Cayman Islands exempted company (the “Company”), by and among the Company, RCF VII Sponsor LLC, a Delaware limited liability company (the “Sponsor”), and the members of the Company’s board of directors, advisory board and/or management team (each, an “IPO Insider” and, collectively, the “IPO Insiders”) and the Securities Purchase Agreement, dated November 2, 2023 (“Purchase Agreement”), by and between the Sponsor and Perception Capital Partners IV LLC, a Delaware limited liability company (“Perception”), pursuant to which, among other things, the Sponsor will transfer certain of the Founder Shares and Private Placement Warrants held by it to Perception.
Section 12 of the Prior Letter Agreement provides that the Prior Letter Agreement may not be changed, amended, modified or waived except by a written instrument signed by the parties thereto. In order to induce the Sponsor to enter into the Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Sponsor, Perception, the IPO Insiders and the other undersigned individuals, each of whom will become a member of the Company’s board of directors and/or management team (the “New Insiders” and, together with the IPO Insiders, the “Insiders”), desire to amend and restate the Prior Letter Agreement in its entirety by entering into this letter agreement (this “Letter Agreement”). Upon execution and delivery of this Letter Agreement by the parties hereto, the Prior Letter Agreement shall cease to be of any force and effect and this Letter Agreement shall govern for all purposes with respect to the matters set forth herein. Certain capitalized terms used herein are defined in paragraph 8 hereof.
| 1. | The Sponsor, Perception and each Insider agrees that if the Company seeks shareholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, it, he or she shall (i) vote any Ordinary Shares (as defined below) owned by it, him or her in favor of any proposed Business Combination and (ii) not redeem any Ordinary Shares owned by it, him or her, other than, with respect to the Sponsor and the IPO Insiders, any Offering Shares owned by it, him or her, if any, in connection with such shareholder approval. If the Company seeks to consummate a proposed Business Combination by engaging in a tender offer, the Sponsor and each Insider agrees that it, he or she will not sell or tender any Ordinary Shares owned by it, him or her in connection therewith. |
| 2. | Perception and each New Insider hereby agrees that in the event that the Company fails to consummate a Business Combination within 30 months from the closing of the Public Offering, or such later period approved by the Company’s shareholders in accordance with the Company’s amended and restated memorandum and articles of association (as it may be amended from time to time, the “Articles”), Perception and each New Insider shall take all reasonable steps to cause the Company to (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten (10) business days thereafter, redeem 100% of the Company’s Class A ordinary shares, par value $0.0001 per share (the “Class A Ordinary Shares”) sold as part of the units in the Public Offering (the “Offering Shares”), at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account (as defined below), including interest earned on the funds held in the Trust Account (which interest shall be net of taxes payable and up to $100,000 of interest to pay dissolution expenses), divided by the number of then issued and outstanding Offering Shares, which redemption will completely extinguish all Public Shareholders’ (as defined below) rights as shareholders (including the right to receive further liquidating distributions, if any), and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining shareholders and the Company’s board of directors, dissolve and liquidate, subject in the case of clauses (ii) and (iii) to the Company’s obligations under Cayman Islands law to provide for claims of creditors and in all cases subject to the other requirements of applicable law. Perception and each New Insider agrees to not propose any amendment to the Articles (A) to modify the substance or timing of the Company’s obligation to allow redemption in connection with a Business Combination or to redeem 100% of the Offering Shares if the Company does not complete a Business Combination within the required time period set forth in the Articles or (B) with respect to any other material provisions relating to shareholders’ rights or pre-Business Combination activity, unless the Company provides its Public Shareholders with the opportunity to redeem their Offering Shares upon approval of any such amendment at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its taxes, divided by the number of then issued and outstanding Offering Shares. |
The Sponsor, Perception and each Insider acknowledges that it, he or she has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Company with respect to the Founder Shares held by it, him or her. The Sponsor, Perception and each Insider hereby further waives, with respect to any Ordinary Shares held by it, him or her, if any, other than, with respect to the Sponsor and the IPO Insiders, any Offering Shares held by it, him, or her, if any, any redemption rights it, he or she may have in connection with (a) the consummation of a Business Combination, including, without limitation, any such rights available in the context of a shareholder vote to approve such Business Combination, or (b) a shareholder vote to approve an amendment to the Articles (A) to modify the substance or timing of the Company’s obligation to allow redemption in connection with a Business Combination or to redeem 100% of the Offering Shares if the Company has not consummated a Business Combination within the time period set forth in the Articles or (B) with respect to any other material other provisions relating to shareholders’ rights or pre-Business Combination activity or in the context of a tender offer made by the Company to purchase Offering Shares (although the Sponsor, Perception, the Insiders and their respective affiliates shall be entitled to redemption and liquidation rights with respect to any Offering Shares it or they hold if the Company fails to consummate a Business Combination within the time period set forth in the Articles).
| 3. | In the event of the liquidation of the Trust Account upon the failure of the Company to consummate a Business Combination within the time period set forth in the Articles, Perception (the “Indemnitor”), agrees to indemnify and hold harmless the Company against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened) to which the Company may become subject as a result of any claim by (i) any third party for services rendered or products sold to the Company or (ii) any prospective target business with which the Company has entered into a written letter of intent, confidentiality or other similar agreement or Business Combination agreement (a “Target”); provided, however, that such indemnification of the Company by the Indemnitor (x) shall apply only to the extent necessary to ensure that such claims by a third party or a Target do not reduce the amount of funds in the Trust Account to below the lesser of (i) $10.20 per Offering Share and (ii) the actual amount per Offering Share held in the Trust Account as of the date of the liquidation of the Trust Account, if less than $10.20 per Offering Share is then held in the Trust Account due to reductions in the value of the trust assets, less taxes payable, (y) shall not apply to any claims by a third party or a Target which executed a waiver of any and all rights to the monies held in the Trust Account (whether or not such waiver is enforceable), and (z) shall not apply to any claims under the Company’s indemnity of the underwriters of the Public Offering against certain liabilities, including liabilities under the Securities Act of 1933, as amended. The Indemnitor shall have the right to defend against any such claim with counsel of its choice reasonably satisfactory to the Company if, within 15 days following written receipt of notice of the claim to the Indemnitor, the Indemnitor notifies the Company in writing that it shall undertake such defense. |
| 4. | (a) The Sponsor, Perception and each Insider hereby agrees and acknowledges that: (i) the Company would be irreparably injured in the event of a breach by such Sponsor, Perception or an Insider of its, his or her obligations under paragraphs 1, 2, 3, 4(b), 4(c), and 9, as applicable, of this Letter Agreement, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach. |
(b) Perception and each New Insider agrees that it, he or she shall not Transfer any Founder Shares until the earlier of (A) one year after the completion of the Company’s initial Business Combination and (B) subsequent to the Company’s initial Business Combination, (x) if the closing price of the Company’s Class A Ordinary Shares equals or exceeds $12.00 per share (as adjusted for share sub-divisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Company’s initial Business Combination, or (y) the date on which the Company completes a liquidation, merger, share exchange or other similar transaction that results in all of the Company’s Public Shareholders having the right to exchange their Ordinary Shares for cash, securities or other property (the “Founder Shares Lock-up Period”).
(c) Perception and each New Insider agrees that it, he or she shall not Transfer any Private Placement Warrants (or any Class A Ordinary Shares underlying the Private Placement Warrants), until 30 days after the completion of a Business Combination (the “Private Placement Warrants Lock-up Period”, together with the Founder Shares Lock-up Period, the “Lock-up Periods”). For the avoidance of doubt, the Lock-up Periods shall not apply to the Founder Shares and Private Placement Warrants held by the Sponsor and the IPO Insiders as of the date hereof.
(d) Notwithstanding the provisions set forth in paragraphs 4(b) and 4(c), Transfers of the Founder Shares, Private Placement Warrants and the Class A Ordinary Shares underlying the Private Placement Warrants that are held by Perception any New Insider or any of their permitted transferees (that have complied with this paragraph 4(d)), are permitted (i) to the Company’s officers or directors, any affiliate or family member of any of the Company’s officers or directors, any affiliate of Perception or to any members of Perception or any of their affiliates; (ii) in the case of an individual, by gift to a member of 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; (iii) in the case of an individual, by virtue of laws of descent and distribution upon death of such individual; (iv) in the case of an individual, pursuant to a qualified domestic relations order; (v) by private sales or transfers made in connection with the consummation of an a Business Combination at prices no greater than the price at which the securities were originally purchased; (vi) in the event of the Company’s liquidation prior to the completion of a Business Combination; (vii) by virtue of the laws of the Cayman Islands or Perception’s [limited liability company operating agreement] upon dissolution of Perception; (viii) in the event of the Company’s liquidation, merger, share exchange or other similar transaction which results in all of the Company’s shareholders having the right to exchange their Class A Ordinary Shares for cash, securities or other property subsequent to the Company’s completion of a Business Combination; or (viv) by private sales or transfers made in connection with an extension of the timeframe for the Company to consummate a Business Combination or in connection with the consummation of an initial Business Combination at prices no greater than the price at which the securities were originally purchased; provided, however, that in the case of clauses (i) through (v) or (vii) or (viv), these permitted transferees must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions herein and the other restrictions contained in this Agreement (including provisions relating to voting, the Trust Account and liquidating distributions).
| 5. | Perception and each New Insider represents and warrants that it, he or she has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked. Each New Insider’s biographical information furnished to the Company (including any such information included in the Company’s filings with the U.S. Securities and Exchange Commission (the “Commission”) is true and accurate in all respects and does not omit any material information with respect to the New Insider’s background. Perception’s and each New Insider’s questionnaire furnished to the Company is true and accurate in all respects. Perception and each New Insider represents and warrants that: it, he or she is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction; it, he or she has never been convicted of, or pleaded guilty to, any crime (i) involving fraud, (ii) relating to any financial transaction or handling of funds of another person, or (iii) pertaining to any dealings in any securities and it, he or she is not currently a defendant in any such criminal proceeding. |
| 6. | Except as disclosed in the Company’s filings with the Commission, neither Perception, nor any officer, nor any affiliate of Perception or any officer, nor any director of the Company, shall receive from the Company any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate, the consummation of a Business Combination (regardless of the type of transaction that it is), other than the following, none of which will be made from the proceeds held in the Trust Account prior to the completion of a Business Combination: repayment of a loan and advances up to an aggregate of $300,000 made to the Company by Perception; payment to Perception or its affiliate or designee for certain office space, utilities, secretarial and administrative support services as may be reasonably required by the Company for a total of $10,000 per month; reimbursement for any reasonable out-of-pocket expenses related to identifying, investigating, negotiating and completing a Business Combination, and repayment of loans, if any, and on such terms as to be determined by the Company from time to time, made by Perception or an affiliate of Perception or any of the Company’s officers or directors to finance transaction costs in connection with an intended Business Combination, provided, that, if the Company does not consummate a Business Combination, a portion of the working capital held outside the Trust Account may be used by the Company to repay such loaned amounts so long as no proceeds from the Trust Account are used for such repayment. Up to $1,500,000 of such loans may be convertible into warrants at a price of $1.00 per warrant at the option of the lender. Such warrants would be identical to the Private Placement Warrants, including as to exercise price, exercisability and exercise period. |
| 7. | The Sponsor, Perception and each Insider has full right and power, without violating any agreement to which it is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and, as applicable, to serve as an officer and/or director on the board of directors of the Company and hereby consents to being named in the Company’s filings with the Commission as an officer and/or director of the Company. |
| 8. | As used herein, (i) “Business Combination” shall mean a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination, involving the Company and one or more businesses; (ii) “Ordinary Shares” shall mean the Class A Ordinary Shares; (iii) “Founder Shares” shall mean the 5,750,000 Class A Ordinary Shares initially issued to the Sponsor as Class B ordinary shares of the Company, par value $0.0001 per share, which were subsequently converted into Class A Ordinary Shares on a one-for-one basis for no consideration pursuant to the terms of the Articles, as amended, (v) “Private Placement Warrants” shall mean the 11,700,000 warrants initially issued to the Sponsor in a private placement that occurred simultaneously with the consummation of the Public Offering; (vi) “Public Shareholders” shall mean the holders of securities issued in the Public Offering; (vii) “Trust Account” shall mean the trust fund into which a portion of the net proceeds of the Public Offering and the sale of the Private Placement Warrants was deposited; and (viii) “Transfer” shall mean the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b). |
| 9. | The Company will maintain an insurance policy or policies providing directors’ and officers’ liability insurance, and each Insider shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any of the Company’s current or former directors or officers. |
| 10. | This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto. |
| 11. | No party hereto may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the Sponsor, Perception, and each Insider and their respective successors, heirs and assigns and permitted transferees. |
| 12. | Nothing in this Letter Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto any right, remedy or claim under or by reason of this Letter Agreement or of any covenant, condition, stipulation, promise or agreement hereof. All covenants, conditions, stipulations, promises and agreements contained in this Letter Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors, heirs, personal representatives and assigns and permitted transferees. |
| 13. | This Letter 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. |
| 14. | This Letter 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 Letter 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 Letter Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. |
| 15. | This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York. The parties hereto (i) all agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York City, in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum. |
| 16. | Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile or other electronic transmission. |
| 17. | This Letter Agreement shall terminate on the earlier of (i) with respect to Perception and the New Insiders, the expiration of the Lock-up Periods, (ii) with respect to Sponsor and the IPO Insiders, the consummation of the Business Combination, and (iii) the liquidation of the Company; provided, that paragraph 3 of this Letter Agreement shall survive such liquidation. |
[Signature Page Follows]
| Sincerely, | ||
| RCF VII SPONSOR LLC, a Delaware limited liability company | ||
| By: | RESOURCE CAPITAL FUND VII L.P. | |
| Managing Member of RCF VII Sponsor LLC | ||
| By: | RCFM GP L.L.C. | |
| General Partner of Resource Capital Fund VII L.P. | ||
| By: | /s/ Mason Hills | |
| Name: | Mason Hills | |
| Title: | General Counsel | |
| KAREN A. BOEHLERT 2021 IRREVOCABLE TRUST | ||
| By: | /s/ Karen A. Boehlert | |
| Name: | Karen A. Boehlert | |
| Title: | Trustee | |
| S&R CAPITAL LTD. | ||
| By: | /s/ Sunny S. Shah | |
| Name: | Sunny S. Shah | |
| Title: | Director | |
| Acknowledged and Agreed: | ||
| RCF ACQUISITION CORP. | ||
| By: | /s/ Sunny S. Shah | |
| Name: | Sunny S. Shah | |
| Title: | Chief Executive Officer and Director | |
[Signature Page to Letter Agreement]
| PERCEPTION CAPITAL PARTNERS IV LLC | ||
| By: | Macabel Holdings, Inc. | |
| Its: | Sole Member | |
| By: | /s/ Rick Gaenzle | |
| Name: | Rick Gaenzle | |
| Title: | Authorized Signatory | |
Signature Page to Letter Agreement
NEW INSIDERS:
| /s/ R. Rudolph Reinfrank | ||
| R. Rudolph Reinfrank |
| /s/ Scott Honour | ||
| Scott Honour |
| /s/ Karrie Willis | ||
| Karrie Willis |
| /s/ Thomas J. Abood | ||
| Thomas J. Abood |
| /s/ Rick Gaenzle | ||
| Rick Gaenzle |
| /s/ John Stanfield | ||
| John Stanfield | ||
| /s/ Tao Tan | ||
| Tao Tan |
[Signature Page to Letter Agreement]
Exhibit 10.5
RCF ACQUISITION CORP.
1400 Wewatta Street, Suite 850
Denver, Colorado 80202
Private & Confidential
| Sunny Shah | |
| By email to: sunny.shah@rcfacquisitioncorp.com | November 6, 2023 |
Dear Sunny,
Termination of employment and waiver of claims
This letter records and implements the termination of your employment agreement with RCF Acquisition Corp (the “Company”) dated 1 September 2022 (as amended from time to time) (the “Employment Agreement”). Any capitalised terms used in this letter but not otherwise defined shall have the meaning given to them in the Employment Agreement.
| 1. | You and the Company hereby agree that the Employment Agreement shall terminate by mutual agreement with effect from 6 November 2023 (the “Termination Date”). You will receive your Salary and contractual benefits in the usual way up to the Termination Date. |
| 2. | Pursuant to Clause 16.1 of the Employment Agreement, the Company shall pay you the sum of USD 12,500 as a payment in lieu of notice through the next available payroll following the Termination Date. You will also receive a payment in lieu of your accrued but untaken holiday entitlement as at the Termination Date. |
| 3. | In accordance with Clause 17.1(b) of the Employment Agreement, you shall, within seven days of the date of this letter, deliver to the Company at the your expense, at the Company’s registered office or any other place the Company may reasonably nominate, all property of any Group Company which may be in your possession or control including, without limitation, all Work Products and all embodiments thereof (whether or not then complete), keys, security pass, laptop, mobile phone, company car (if any), all correspondence, documents, papers, memoranda, notes and records (including any copies and any records stored by electronic means) relating to the business or affairs of any Group Company, and any other tangible property of or relating to the business of any Group Company, in your possession or which are or were last under your power or control. |
| 4. | In accordance with Clause 17.1(c) of the Employment Agreement, you shall, within seven days of the date of this letter, irretrievably delete any information relating to the business of any Group Company or its clients, customers, employees, finances, business contacts, or suppliers electronically stored on media or devices which are in your possession or under your control. |
| 5. | You shall continue to be bound by your obligations under Clauses 13 (Intellectual Property), 14 (Confidentiality), 18 (Post-Termination Obligations), 27 (General), and 28 (Governing law and Jurisdiction) of the Employment Agreement, which survive termination of the Employment Agreement. |
| 6. | You hereby accept the terms set out in this letter in full and final settlement of all or any claims and any rights of action whatsoever and howsoever arising (whether arising under the Employment Agreement, or any other contract, common law, statute, or otherwise), and whether in the United Kingdom, or any other country or jurisdiction, and whether contemplated or not, which you have, or may have, against the Company, any of its Group Companies or their employees or officers, arising out of or relating to the Employment Agreement and its termination and you hereby irrevocably waive any such claims or rights of action which you have now or may become aware of hereafter. |
| 7. | You undertake that you shall not at any time use or disclose to any third party any Confidential Information except where: |
| (i) | such Confidential Information has come into the public domain other than through unauthorised disclosure by you; |
| (ii) | the Company has given its prior written consent to such use or disclosure; or |
| (iii) | such disclosure is: |
| (A) | to your legal or tax adviser or to a medical professional and is reasonably necessary for the purposes of obtaining their professional advice; |
| (B) | to your spouse or immediate family, provided that the recipient is made aware of your obligation of confidentiality under this letter and agrees to keep such Confidential Information confidential; |
| (C) | a protected disclosure within the meaning of section 43A of the Employment Rights Act 1996; |
| (D) | required by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceeding or claim or otherwise by applicable law or regulatory requirement; |
| (E) | required by a law enforcement agency for the purposes of any investigation into or prosecution of an alleged criminal offence; or |
| (F) | required in order to report alleged criminal activity to a law enforcement agency; |
| 8. | You agree not to disclose the contents of this letter or the negotiations or circumstances leading to the agreement of this letter, to any third party, except where such disclosure is to: (a) your spouse or immediate family and such recipient is made aware of, and complies with, your obligation of confidentiality under this letter as if the recipient were a party to this letter; or (b) your legal or tax adviser or to a medical professional and is reasonably necessary for the purpose of obtaining their professional advice. |
| 9. | You agree not make to any third party any misleading, untrue or derogatory statements (whether orally or in writing) about any Group Company or its officers or employees. |
| 10. | This letter may be executed in any number of counterparts, each of which, when executed, shall be an original, and all the counterparts together shall constitute one and the same instrument. |
| 11. | This letter and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. |
| 12. | You and the Company irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this letter or its subject matter or formation (including non-contractual disputes or claims). |
In Witness Whereof this letter has been executed and delivered as a deed on the date first above written.
| Executed and delivered as a deed by RCF |
 |
|
| Acquisition Corp acting by Thomas | Signer | |
| Boehlert, a director, in the presence of: |
| /s/ Thomas Boehlert |
| Witness signature: | ||
| Witness name: | ||
| Witness address: | ||
| Witness occupation: |
| Executed and delivered as a deed by Sunny |
|
Signer |
| Shah in the presence of: |
| /s/ Sunny Shah |
| Witness signature: | ||
| Witness name: | ||
| Witness address: | ||
| Witness occupation: |