| Item 1.01 | Entry into a Material Definitive Agreement. |
On June 3, 2021, GigCapital2, Inc., a Delaware corporation (“GigCapital2”) and Kepos Alpha Master Fund L.P., a Cayman Islands limited partnership (“KAF”), entered into a Forward Share Purchase Agreement (the “Purchase Agreement”) pursuant to which KAF may elect to sell and transfer to GigCapital2, and GigCapital2 will purchase from KAF, on September 8, 2021 or, in KAF’s sole discretion, any one calendar month anniversary of that date (the “Closing Date”), up to 1,700,000 shares of common stock of GigCapital2 that are held by KAF at the closing of GigCapital2’s business combinations with UpHealth Holdings, Inc., a Delaware corporation (“UpHealth,” and such business combination, the “UpHealth Combination”), and with Cloudbreak Health, LLC, a Delaware limited liability company (“Cloudbreak,” and such business combination, the “Cloudbreak Combination” and, together with the UpHealth Combination, the “Business Combinations,” and such shares of common stock, the “KAF Shares.”). The per share price at which KAF has the right to sell the KAF Shares to GigCapital2 is (a) $10.30225 per KAF Share, plus (b) in the event that the Closing Date occurs after September 8, 2021, $0.05075 per KAF Share for each month (prorated for a partial month) following September 8, 2021. KAF will notify GigCapital2 in writing two business days prior to the chosen Closing Date, specifying the number of KAF Shares that GigCapital2 is required to purchase. In the event that following the closing of the Business Combinations, GigCapital2 has less than $150 million cash or cash equivalents, then GigCapital2 must deliver a written notice to KAF of such occurrence within 10 days of such occurrence, and the Closing Date will occur two business days thereafter.
Notwithstanding anything to the contrary in the Purchase Agreement, KAF is allowed at its election to sell any or all of the KAF Shares in the open market commencing after the closing of the Business Combinations, as long as the sales price is above $10.10 per Share. Nothing in the Purchase Agreement prohibits or restricts KAF with respect to the purchase or sale of GigCapital2 warrants.
In exchange for GigCapital2’s commitment to purchase the KAF Shares on the Closing Date, KAF agreed to continue to hold, and not offer, sell, contract to sell, pledge, transfer, assign, or otherwise dispose of, directly or indirectly, or hedge (including any transactions involving any derivative securities of GigCapital2 and including any Short Sales (as defined below) involving any of GigCapital2’s securities) the KAF Shares prior to Closing Date. “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities and Exchange Act of 1934 (the “Exchange Act”), whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers. KAF is permitted to pledge the KAF Shares in connection with a bona fide margin agreement (and such a pledge is not considered to be a transfer, sale or assignment of the KAF Shares).
The Purchase Agreement contains customary representations, warranties and covenants from the parties. GigCapital2’s and KAF’s obligations to consummate the transactions contemplated by the Purchase Agreement are subject to the consummation of the Business Combinations.
The Purchase Agreement may be terminated: (i) by mutual written consent of GigCapital2 and KAF, or (ii) automatically if GigCapital2’s stockholders fail to approve the Business Combinations.
The foregoing description is only a summary of the Purchase Agreement, and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is filed as Exhibit 10.1 and is incorporated by reference herein. The Purchase Agreement is included as an exhibit to this Current Report on Form 8-K in order to provide investors and security holders with material information regarding its terms and the transaction. It is not intended to provide any other factual information about GigCapital2 or KAF. The representations, warranties and covenants contained in the Purchase Agreement were made only for purposes of that agreement; are solely for the benefit of the parties to the Purchase Agreement; may have been made for the purposes of allocating contractual risk between the parties to the Purchase Agreement instead of establishing these matters as facts; and may be subject to standards of materiality applicable to the parties that differ from those applicable to investors. Investors should not rely on the representations, warranties or covenants or any description thereof as characterizations of the actual state of facts or condition of GigCapital2 or KAF.
Additional Information and Where to Find It
In connection with the proposed Business Combinations, on May 6, 2021 GigCapital2 filed with the SEC an amended registration statement on Form S-4 containing a preliminary proxy statement and a preliminary prospectus of GigCapital2, and after the registration statement was declared effective on May 12, 2021, GigCapital2 mailed a definitive proxy statement/prospectus relating to the proposed Business Combinations to its stockholders. This Current Report on Form 8-K does not contain all the information that should be considered concerning the proposed Business Combinations and is not
