Exhibit 10.1
AGREEMENT
This AGREEMENT (this “Agreement”) is made as of this 11th day of September 2023 by and among Prime Impact Acquisition I (“SPAC”), Cheche Technology Inc., a Cayman Islands exempted company (the “Company”), Cheche Group Inc., a Cayman Islands exempted company (“Holdings”) and , a company incorporated under the laws of (the “Buyer”).
WHEREAS, SPAC was organized for the purpose of acquiring, through a merger, capital stock exchange, asset acquisition or other similar business combination, an operating business (“Business Combination”);
WHEREAS, on January 29, 2023, SPAC, the Company, Holdings, and Cheche Merger Sub Inc., a Cayman Islands exempted company and wholly owned direct subsidiary of Holdings (“Merger Sub”) entered into a business combination agreement (the “Business Combination Agreement”), pursuant to which, among other things, (a) on the closing date of the business combination, Prime Impact will merge with and into Holdings (the “Initial Merger”), with Holdings surviving the Initial Merger (Holdings, in its capacity as the surviving corporation of the Initial Merger, is sometimes referred to herein as the “Surviving Corporation”) and (b) on the closing date of the business combination, following the Initial Merger, Merger Sub will merge with and into the Company (the “Acquisition Merger”, and together with the Initial Merger, the “Mergers”), with the Company surviving the Acquisition Merger as a wholly owned subsidiary of the Surviving Corporation (the Company, in its capacity as the surviving corporation of the Acquisition Merger, is sometimes referred to herein as the “Surviving Subsidiary Company”). The Mergers, together with the other transactions related thereto, are referred to herein as the “Transactions.” References herein to “SPAC” shall refer to Prime Impact Acquisition I for all periods prior to completion of the Initial Merger and to the Surviving Corporation for all periods after completion of the Initial Merger. Following the Transactions, Holdings shall be a publicly listed company on Nasdaq; and
WHEREAS, Buyer agrees to purchase no less than US$10.0 million worth of the Class A ordinary shares of SPAC, par value $0.0001 per share (the “SPAC Shares”) or the Class A ordinary shares of Holdings, par value $0.00001 per share, (the “Holdings Shares”), as specified below.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
PURCHASEAND CLOSING
Section 1.01 Purchase from Third Parties. The Buyer agrees that after Holdings publicly files a registration statement relating to the transactions contemplated by the Business Combination Agreement, the Buyer may acquire certain amount of SPAC Shares with an aggregate market value of no less than US$5.0 million in open market or private transactions from time to time at the then prevailing market price of the SPAC Shares.
Section 1.02 Purchase from Holdings. Concurrently with the closing of the transactions contemplated by the Business Combination Agreement (the “Closing”), the Buyer shall purchase from Holdings an aggregate of 500,000, Holdings Shares at US$10.00 per Holdings Ordinary Share purchased, representing an aggregate subscription amount of US$5.0 million (the “Subscription Amount”). At the Closing, the Buyer shall (1) deliver evidence of purchase and shareholding for any and all SPAC Shares purchased by the Buyer pursuant to Section 1.01, and (2) pay the aggregate purchase price to Holdings by wire transfer of immediately available funds to an account specified by Holdings, and Holdings shall deliver an instruction letter to its transfer agent to deliver the Holdings Shares purchased by the Buyer. It shall be a condition precedent to the obligation of the Buyer on the one hand and Holdings on the other hand, to consummate the transfer of the Holdings Shares and payment of the aggregate purchase price contemplated hereunder that the other party’s representations and warranties are true and correct at the Closing with the same effect as though made on such date, unless waived in writing by the party to whom such representations and warranties are made.
With regard to securities purchased pursuant to this Section 1.02, upon delivery of written notice from (or on behalf of) Holdings to the Buyer (the “Closing Notice”), that Holdings reasonably expects all conditions precedent to the closing of the Transactions to be satisfied or waived on an expected closing date that is not less than five (5) business days (or any later date as mutually agreed by the parties hereto) from the date on which the Closing Notice is delivered to the Buyer, the Buyer shall, by irrevocable written wire instruction, transfer to Holdings, at least three (3) business days (or any later date as mutually agreed by the parties hereto) prior to the closing date of the Transactions, the amount referenced in the above paragraph by
irrevocable wire transfer of United States dollars in immediately available funds, to be held in escrow until the Closing, to the account(s) specified by Holdings in the Closing Notice. Before the delivery of the Closing Notice, the Holdings may deliver a pre-closing notice to the Buyer. Notwithstanding the foregoing, the Buyer shall not be obligated to transfer the Subscription Amount to such account pursuant this Section 1.02 prior to the receipt of the notice confirming the completion of the required filing (the “CSRC Approval”) pursuant to the Trial Administrative Measures of Overseas Securities Offering and Listing by Domestic Companies, promulgated by the China Securities Regulatory Commission on February 17, 2023 (the “Overseas Listing Trial Measures”) and the supporting guidelines of the Overseas Listing Trial Measures. On the Closing Date, Holdings shall issue the Holdings Shares to the Buyer and promptly cause such Holdings Shares to be registered in book entry form in the name of the Buyer on Holdings’ share register or register of members, as applicable. In the event the closing of the Transactions does not occur within two (2) business days of the expected closing date in the Closing Notice, unless otherwise agreed by Holdings and the Buyer, Holdings shall promptly (but not later than five (5) business days thereafter) return the Subscription Amount to the Buyer by wire transfer of U.S. dollars in immediately available funds to the account specified by the Buyer, and any book entries or share certificates shall be deemed cancelled, provided that, unless this Agreement has been terminated pursuant to Section 8 hereof, such return of funds shall not terminate this Agreement or relieve the Buyer or its obligations to purchase the Holdings Shares at the Closing.
Section 1.03 Non-Trading. The Buyer agrees that it will not redeem or transfer any SPAC Shares purchased pursuant to Section 1.01 of this Agreement until and after the Closing.
ARTICLE II
REPRESENTATIONSAND WARRANTIESOF SPACAND HOLDINGS
Each of SPAC and Holdings hereby represents and warrants to Buyer on the date hereof and as of the Closing that:
Section 2.01 Organization. Such company is duly formed in the jurisdiction of its organization and has the requisite corporate power and authority to execute, deliver and carry out the terms of this Agreement and to consummate the transactions contemplated hereby.
Section 2.02 Authority; Non-Contravention. This Agreement has been validly authorized, executed and delivered by such company and assuming the due authorization, execution and delivery thereof by the other parties hereto, is a valid and binding agreement enforceable in accordance with its terms, subject to the general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally. The execution, delivery and performance of this Agreement by such company does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any agreement, contract or instrument to which such company is a party which would prevent such company from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which such company is subject.
Section 2.03 Valid Issuance. The Holdings Shares purchased pursuant to Section 1.02 of this Agreement have been duly authorized and, when issued and delivered to and paid for by the Buyer pursuant to this Agreement, will be validly issued, fully paid and non-assessable and free and clear of any pledge, mortgage, security interest, encumbrance, lien, charge, assessment, right of first refusal, right of pre-emption, third party right or interest, claim or restriction of any kind or nature, except for restrictions arising under the Securities Act of 1933, as amended (the “Securities Act”).
ARTICLE III
REPRESENTATIONSAND WARRANTIESOFTHE BUYER
Buyer hereby represents and warrants to SPAC and Holdings on the date hereof and as of the Closing that:
Section 3.01 Organization. Buyer is a corporation, duly incorporated, validly existing and in good standing in the jurisdiction of its incorporation. Buyer has the requisite corporate power and authority to execute, deliver and carry out the terms of this Agreement and to consummate the transactions contemplated hereby.
Section 3.02 Authority; Non-Contravention. This Agreement has been validly authorized, executed and delivered by Buyer and assuming the due authorization, execution and delivery thereof by the other parties hereto, is a valid and binding agreement enforceable in accordance with its terms, subject to the general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally. The execution, delivery and performance of this Agreement by Buyer does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any agreement, contract or instrument to which Buyer is a party which would prevent Buyer from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which Buyer is subject. The signature on this Agreement is genuine, and the signatory has legal competence and capacity to execute the same or the signatory has been duly authorized to execute the same, and this Agreement constitutes a legal, valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity
Section 3.03 Governmental Approvals. All consents, approvals, orders, authorizations, registrations, qualifications, designations, declarations or filings with any governmental or other authority on the part of Buyer required in connection with the consummation of the transactions contemplated in the Agreement have been or shall have been obtained prior to and be effective as of the Closing.
Section 3.04 Sophisticated Buyer. Buyer is sophisticated in financial matters and is able to evaluate the risks and benefits attendant to the purchase of the Holdings Shares, satisfying the applicable requirements set forth on Schedule A (and shall provide the requested information set forth on Schedule A). The Buyer acknowledges that it shall be responsible for any of its tax liabilities that may arise as a result of the transactions contemplated by this Agreement, and that neither SPAC nor Holdings has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by the Agreement. Alone, or together with any professional advisor(s), the Buyer has adequately analyzed and fully considered the risks of an investment in the Holdings Shares and determined that the Holdings Shares are a suitable investment for the Buyer and that the Buyer is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Buyer’s investment. The Buyer acknowledges specifically that a possibility of total loss exists. Further, the Buyer acknowledges and agrees that no federal or state agency in any jurisdiction has passed upon or endorsed the merits of the offering of the Holdings Shares or made any findings or determination as to the fairness of this investment.
Section 3.05 No Brokers. No broker, investment banker, financial advisor, finder or other person has been retained by or is authorized to act on behalf of Buyer that will be entitled to any fee or commission for which SPAC, Holdings or the Company will be liable in connection with the execution of this Agreement or the consummation of the transactions contemplated hereby.
Section 3.06 Securities Law Compliance. The Buyer has been advised that the Holdings Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and the offer and sale of the Holdings Shares by Holdings has not been registered under the Securities Act, or any other securities laws and, therefore, none of the Holdings Shares purchased at the Closing can be resold unless they are registered under the Securities Act and applicable securities laws or unless an exemption from such registration requirements is available. The Buyer understands that the Holdings Shares purchased from Holdings will be considered to be “restricted securities” under the Securities Act, and that, therefore, the Buyer will not be eligible to use Rule 144 promulgated under the Securities Act (“Rule 144”) for at least one year after “Form 10” information relating to the Business Combination has been filed with the U.S. Securities and Exchange Commission (the “SEC”). The Buyer is acquiring the Holdings Shares for Buyer’s own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof. The Buyer represents that (i) it is an “accredited investor” as such term is defined in Rule 501 of Regulation D, promulgated under the Securities Act, and that the Buyer is not subject to the “Bad Actor” disqualification, as such terms is defined in Rule 506 of Regulation D, promulgated under the Securities Act or (ii) it is not a “U.S. person” as defined in Rule 902 of Regulation S, promulgated under the Securities Act.
Section 3.07. Information The Buyer acknowledges and agrees that the Buyer has received such information as the Buyer deems necessary in order to make an investment decision with respect to the SPAC Shares and/or the Holdings Shares, including, with respect to SPAC, Holdings, the Company, their businesses and the Transactions. The Buyer acknowledges that certain information received was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in subject projections. Without limiting the generality of the foregoing, the Buyer acknowledges that it has reviewed the filings of SPAC and Holdings with the SEC. The Buyer acknowledges and agrees that the Buyer and the Buyer’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Buyer and such Buyer’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Holdings Shares.
Section 3.08 Material Non-Public Information. The Buyer is not in possession of any material non-public information relating to SPAC, Holdings, the Company, or the Transactions.
Section 3.09. No Solicitation. The Buyer acknowledges that the Holdings Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Buyer acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, SPAC, Holdings, any placement agent for the, any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing), other than the representations and warranties of SPAC and Holdings contained in Article III of this Agreement, in making its investment or decision to invest pursuant to this Agreement.
Section 3.10 Sufficient Funds. The Buyer, has or has commitments to have and, when required to deliver payment pursuant to Section 1.02 above, will have sufficient funds to pay the purchase price and consummate the purchase and sale of SPAC Shares or the Holdings Shares pursuant to this Agreement.
Section 3.11 OFAC, Sanctions and Banking Regulations. Neither the Buyer nor any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is (i) a person named on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identification List, or any other similar list of sanctioned persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), or any similar list of sanctioned persons administered by the European Union or any individual European Union member state, including the United Kingdom (collectively, “Sanctions Lists”);
(ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, including the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). The Buyer represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that the Buyer maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Buyer also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the European Union, or any individual European Union member state, including the United Kingdom. The Buyer further represents that the funds held by the Buyer and used to purchase the Holdings Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor.
Section 3.12. ERISA. If the Buyer is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit
plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with ERISA Plans, “Plans”), the Buyer represents and warrants that (A) none of SPAC, Holdings, the Company and any of its affiliates (the “Transaction Parties”) has provided investment advice or has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Holdings Shares, and none of the parties to the Transactions is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with the Buyer’s investment in the Holdings Shares; (B) the decision to invest in the Holdings Shares has been made at the recommendation or direction of a fiduciary (for purposes of ERISA and/or Section 4975 of the Code, or any applicable Similar Law) with respect to the Buyer’s investment in the Holdings Shares who is independent of the parties to the Transactions; and (C) its purchase of the Holdings Shares will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or any applicable Similar Law.
Section 3.13 Outside Date for Closing. Buyer acknowledges that the parties to the Business Combination Agreement may revise the Outside Date (as defined in the Business Combination and as it may be extended as described therein) at their discretion without the consent of the Buyer.
ARTICLE IV
REGISTRATION RIGHTS
Section 4.01 Registration. In the event that the Holdings Shares are not registered in connection with the consummation of the Transactions, Holdings agrees that, within thirty (30) calendar days after the Closing Date (or within ninety (90) calendar days following the Closing Date if Holdings is required to include therein additional financial information that is not included in the registration statement on Form F-4 at the time of the closing of the Transactions), it will file or cause to be filed, with the SEC (at the its sole cost and expense) a registration statement registering the resale of the Holdings Shares (the “Registration Statement”), and it shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof but no later than the earlier of (a) sixty (60) calendar days (or one hundred and twenty (120) calendar days if the SEC notifies Holdings that it will “review” such Registration Statement) following the initial filing date thereof and (b) ten (10) business days after SPAC is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be “reviewed” or will not be subject to further review (the “Effective Date”); provided, however, that if the SEC is closed for operations due to a government shutdown, the Effectiveness Date shall be extended by the same amount of days that the Commission remains closed for operations, provided, further, that Holdings’ obligations to include the Holdings Shares in the Registration Statement are contingent upon the Buyer furnishing in writing to Holdings such information regarding the Buyer, the securities of SPAC held by the Buyer, the intended method of disposition of the Holdings Shares (which shall be limited to non-underwritten public offerings) and such other information as shall be reasonably requested by the Holdings to effect the registration of the Holdings Shares, and the Buyer shall execute such documents in connection with such registration as SPAC may reasonably request that are customary of a selling shareholder in similar situations, including providing that Holdings shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement (i) as permitted hereunder and (ii) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of Holdings’ Annual Report on Form 20-F for its first completed fiscal year. In connection with the foregoing, the Buyer shall not be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Holdings Shares. The Buyer agrees to, except for such times as Holdings is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to cause such Registration Statement, or another shelf registration statement that includes the Holdings Shares to be sold pursuant to this Agreement, to remain effective until the earliest of (i) the fifth anniversary of the Closing, (ii) the date on which the Buyer ceases to hold any Holdings Shares issued pursuant to this Agreement, or (iii) on the first date on which the Buyer is able to sell all of its Holdings Shares issued pursuant to this Agreement (or shares received in exchange therefor) under Rule 144 promulgated under the Securities Act (“Rule 144”) without the public information, volume or manner of sale limitations of such rule (such date, the “End Date”).
Section 4.02 Disclosure of Information. Prior to the End Date, Holdings will use commercially reasonable efforts to qualify the Holdings Shares for listing on the applicable stock exchange. The Buyer agrees to disclose its ownership to Holdings upon request to assist it in making the determination with respect to Rule 144 described in clause (iii) above. Holdings may amend the Registration Statement so as to convert the Registration Statement to a Registration Statement on Form F-3 at such time after Holdings becomes eligible to use such Form F-3. The Buyer acknowledges and agrees that Holdings may suspend the use of any such registration statement if it determines that in order for such registration statement not to contain a material misstatement or omission, an amendment thereto would be needed to include information that would at that time not otherwise be required in a current, quarterly, or annual report under the Exchange Act. Holdings’ obligations to include the Holdings Shares issued pursuant to this Agreement (or shares issued in exchange therefor) for resale in the Registration Statement are contingent upon the Buyer furnishing in writing to Holdings such information regarding the Buyer, the securities of Holdings held by the Buyer and the intended method of disposition of such Holdings Shares, which shall be limited to non-underwritten public offerings, as shall be reasonably requested by Holdings to effect the registration of such Holdings Shares, and shall execute such documents in connection with such registration as Holdings may reasonably request that are customary of a selling stockholder in similar situations.
Section 4.03 Suspension of Effectiveness Notwithstanding anything to the contrary in this Agreement, Holdings shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require the Investor not to sell under the Registration Statement or to suspend the effectiveness thereof, if (x) the use of the Registration Statement would require the inclusion of financial statements that are unavailable for reasons beyond Holdings’ control, (y) Holdings determines that in order for the Registration Statement to not contain a material misstatement or omission, an amendment thereto would be needed to include information that would at that time not otherwise be required in a current, quarterly, or annual report under the Exchange Act, or if (z) such filing or use could materially affect a bona fide business or financing transaction of Holdings or its subsidiaries or would require additional disclosure by Holdings in the Registration Statement of material information that Holdings has a bona fide business purpose for keeping confidential (each such circumstance, a “Suspension Event”). Upon receipt of any written notice from Holdings of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, Holdings agrees that it will immediately discontinue offers and sales of the Holdings Shares under the Registration Statement until the Buyer receives copies of a supplemental or amended prospectus that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by Holdings that it may resume such offers and sales; provided, for the avoidance of doubt, that Holdings shall not include any material non-public information in any such written notice. If so directed by Holdings, the Buyer will deliver to Holdings or destroy all copies of the prospectus covering the Holdings Shares in the Buyer’s possession.
It is a condition precedent to the obligations of Holdings to take any action pursuant to this Article IV that the Buyer shall cooperate with Holdings in providing the information necessary to effect the registration of their Holdings Shares, including completion of customary questionnaires and furnishing of information regarding itself, the securities of Holdings held by it and intended method of disposition as shall be reasonably requested in writing by the Company. Failure to do so will at minimum result in exclusion of Buyer’s Holdings Shares from the Registration Statement.
ARTICLE V
ACKNOWLEDGEMENT; COVENANT; WAIVER
Section 5.01 Acknowledgement; Waiver. Buyer (i) acknowledges that SPAC, the Company and Holdings may possess or have access to material non-public information which has not been and will not be communicated to Buyer; (ii) hereby waives any and all claims, whether at law, in equity or otherwise, that he, she, or it may now have or may hereafter acquire, whether presently known or unknown, against SPAC, the Company, Holdings or any of their respective officers, directors, employees, agents, affiliates, subsidiaries, successors or assigns relating to any failure to disclose any non-public information in connection with the transactions contemplated by this Agreement, including without limitation, any such claims arising under the securities or other laws, rules and regulations, and (iii) is aware that SPAC, the Company and Holdings are relying on the foregoing acknowledgement and waiver in clauses (i) and (ii) above, respectively, in connection with the transactions contemplated by this Agreement.
5.02 Buyer Covenant; The Buyer hereby agrees that, from the date of this Agreement, none of the Buyer, its controlled affiliates, or any person or entity acting on behalf of Buyer or any of its controlled affiliates or pursuant to any understanding with the Buyer or any of its controlled affiliates will engage in any Short Sales with respect to securities of SPAC prior to the Closing Date. For purposes of this Section 5.02, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers. Notwithstanding the foregoing, (i) nothing herein shall prohibit other entities under common management with the Buyer that have no knowledge of this Agreement or of the Buyer’s participation in the Transactions (including the Buyer’s controlled affiliates and/or affiliates) from entering into any Short Sales and (ii) in the case of the Buyer that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Buyer’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Buyer’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Holdings Shares covered by this Agreement.
5.03 Trust Account Waiver. The Buyer acknowledges that SPAC is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving SPAC and one or more businesses or assets. The Buyer further acknowledges that, as described in SPAC’s prospectus relating to its initial public offering dated September 9, 2020 (the “IPO Prospectus”) available at www.sec.gov, substantially all of SPAC’s assets consist of the cash proceeds of SPAC’s initial public offering and private placement of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit of SPAC, its public shareholders and the underwriter of SPAC’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to SPAC to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the IPO Prospectus. For and in consideration of SPAC entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Buyer hereby irrevocably waives any and all right, title and interest, or any claim of any kind it has or may have in the future, in or to any monies held in the Trust Account, and irrevocably agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Agreement. The Buyer agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by SPAC and its affiliates to induce it to enter in this Agreement, and each such party further intends and understands such waiver to be valid, binding and enforceable against the Buyer and its affiliates under applicable law. To the extent the Buyer commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to SPAC or its affiliates, which proceeding seeks, in whole or in part, monetary relief against SPAC or its affiliates, the Buyer hereby acknowledges and agrees that the Buyer’s sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit the Buyer (or any person claiming on any of their behalf or in lieu of any of the Buyer) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein and in the event of any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to SPAC or its affiliates, which proceeding seeks, in whole or in part, relief against the Trust Account (including any distributions therefrom) in violation of this Agreement, SPAC shall be entitled to recover from the Buyer and its affiliates, the associated legal fees and costs in connection with any such action, in the event SPAC or its affiliates, as applicable, prevails in such action or proceeding. Notwithstanding anything else in this Section 5.03, nothing herein shall be deemed to limit the Buyer’s right, title, interest or claim to the Trust Account by virtue of the Buyer’s (x) record or beneficial ownership of securities of SPAC acquired by any means other than pursuant to this Agreement or (y) redemption rights in connection with the Transactions with respect to any securities of SPAC owned by the Buyer.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Termination. This Agreement shall terminate on the earlier of (i) the date agreed by all of the parties hereto in writing, and (ii) the date the Business Combination Agreement is terminated.
Section 6.02 Counterparts; Facsimile. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. This Agreement or any counterpart may be executed via facsimile transmission, and any such executed facsimile copy shall be treated as an original.
Section 6.03 Governing Law. This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of New York. Each of the parties hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall, to the fullest extent applicable, be brought and enforced first in the Southern District of New York, then to such other court in the State of New York as appropriate and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.04 Remedies Cumulative. Each of the parties hereto acknowledges and agrees that, in the event of any breach of any covenant or agreement contained in this Agreement by the other party, money damages may be inadequate with respect to any such breach and the non-breaching party may have no adequate remedy at law. It is accordingly agreed that each of the parties hereto shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to seek injunctive relief and/or to compel specific performance to prevent breaches by the other party hereto of any covenant or agreement of such other party contained in this Agreement. Accordingly, Buyer hereby agrees that each of SPAC and Holdings is entitled to an injunction prohibiting any conduct by the Buyer in violation of this Agreement and the Buyer shall not seek the posting of any bond in connection with such request for an injunction. Furthermore, in any action by SPAC or Holdings to enforce this Agreement, Buyer waives its right to assert any counterclaims and its right to assert set-off as a defense. The prevailing party agrees to pay all costs and expenses, including reasonable attorneys’ and experts’ fees that such prevailing party may incur in connection with the enforcement of this Agreement.
Section 6.05 Severability. If any term, provision or covenant of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions and covenants of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Section 6.06 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns. Neither this Agreement nor any rights that may accrue to the Buyer hereunder (other than the SPAC Shares acquired hereunder if any) may be transferred or assigned without the prior written consent of SPAC.
Section 6.07 Publicity, Announcements and Regulatory Filings. As promptly as practicable following the date hereof, but in no event later than four (4) business days following the signing of this Agreement, SPAC shall, file with the SEC a Current Report on Form 8-K (the “Disclosure Document”) disclosing (i) all material terms of the transactions contemplated hereby, (ii) all material terms of the Transactions and (iii) any other material, nonpublic information that SPAC has provided to the Buyer any time prior to the filing of the Disclosure Document. All press releases or other public communications relating to the transactions contemplated hereby between SPAC, Holdings and the Buyer, and the method of the release for publication thereof, shall prior to the Closing be subject to the prior approval of (i) SPAC, (ii) Holdings, and (ii) to the extent such press release or public communication references the Buyer by name, the Buyer, which approval shall not be unreasonably withheld or conditioned; provided that neither SPAC or Holdings shall be required to obtain consent pursuant to this Section 6.07 to the extent any proposed release or statement is substantially equivalent to the information that has previously been made public without breach of the obligation under this Section 6.07. The restriction in this Section 6.07 shall not apply to the extent the public announcement is required by applicable securities law, any governmental authority or stock exchange rule; provided, that in such an event, the applicable party shall use its commercially reasonable efforts to consult with the other party in advance as to its form, content and timing.
Section 6.08 Headings. The descriptive headings of the Sections hereof are inserted for convenience only and do not constitute a part of this Agreement.
Section 6.09 Entire Agreement; Changes in Writing. This Agreement constitutes the entire agreement among the parties hereto and supersedes and cancels any prior agreements, representations and warranties, whether oral or written, among the parties hereto relating to the transaction contemplated hereby. Neither this Agreement nor any provision hereof may be changed or amended orally, but only by an agreement in writing signed by all of the parties hereto.
Section 6.10 Further Assurances. If at any time any of the parties hereto shall consider or be advised that any further documents or actions are necessary or desirable to vest, perfect or confirm of record or otherwise the rights, title or interest in or to the SPAC Shares or to the Holdings Shares or under or otherwise pursuant to this Agreement, the parties hereto shall execute and deliver such further documents or take such actions and provide all assurances and to take and do all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in or to the SPAC Shares or to the Holdings Shares or under or otherwise pursuant to this Agreement.
Section 6.11 Notices. All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given
(i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email (in each case in this clause (iv), solely if receipt is confirmed, but excluding any automated reply, such as an out-of-office notification), addressed as follows:
If to the Buyer, to the address provided on the Buyer’s signature page hereto.
If to SPAC:
Prime Impact Acquisition I
132 E San Carlos Street, Suite 12
San Jose, CA 95112
Attention: Mark Long
Email:
with copies to (which shall not constitute notice), to:
Goodwin Procter LLP
620 Eighth Avenue
And
If to Holdings or the Company, to:
8/F, Desheng Hopson Fotune Plaza
13-1 Deshengmenwai Avenue
Xicheng District, Beijing 100088, China
Attention: Lei Zhang
Email: zhanglei@cheche365.com
with copies to (which shall not constitute notice), to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
Unit 2901, 29F, Tower C, Beijing Yintai Centre
No. 2 Jianguomenwai Avenue
Chaoyang District, Beijing 100022
The People’s Republic of China
Attention: Dan Ouyang, Esq./Ronnie K. Li, Esq.
Email: douyang@wsgr.com/keli@wsgr.com
or to such other address or addresses as the parties may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.
(Signature pages follow)
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth on the first page of this Agreement.
| PRIME IMPACT ACQUISITION I | ||
| By: |
| |
| Name: Mark Long | ||
| Title: Founder, Co-CEO and CFO | ||
| CHECHE TECHNOLOGY INC. | ||
| By: |
| |
| Name: Zhang Lei | ||
| Title: Director | ||
| CHECHE GROUP INC. | ||
| By: |
| |
| Name: Zhang Lei | ||
| Title: Director | ||
| PRIME IMPACT CAYMAN, LLC | ||
| By: |
| |
| Name: Mark Long | ||
| Title: Founder, Co-CEO and CFO | ||
Accepted and agreed this.
BUYER:
| Signature of Buyer: Prime Impact Cayman, LLC. | Signature of Joint Buyer, if applicable: | |||||||
| By: |
| By: |
| |||||
| Name: Mark Long | Name: | |||||||
| Title: Founder, Co-CEO and CFO | Title: | |||||||
Date:
| Name of Buyer: Prime Impact Cayman, LLC. | Name of Joint Buyer, if applicable: | |||||
| (Please print. Please indicate name and | (Please print. Please indicate name and | |||||
| Capacity of person signing above) | Capacity of person signing above) | |||||
| Name in which securities are to be registered | ||||||
| (if different from the name of Buyer listed directly above): |
Email Address:
If there are joint investors, please check one:
| ☐ | Joint Tenants with Rights of Survivorship |
| ☐ | Tenants-in-Common |
| ☐ | Community Property |
| Buyer’s EIN: | Joint Buyer’s EIN: |
| Business Address-Street: | Mailing Address-Street (if different): |
| City, State, Zip: | City, State, Zip: | |
| Attn: | Attn: | |
| Telephone No.: | Telephone No.: _____________________ | |
| Facsimile No.: __________________________ | Facsimile No.: ______________________ |
You must pay the Subscription Amount by wire transfer of U.S. dollars in immediately available funds, to be held in escrow until the Closing, to the account specified by Holdings in the Closing Notice. To the extent the offering is oversubscribed, the number of SPAC Shares received may be less than the number of SPAC Shares subscribed for.
SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF BUYER
| A. | QUALIFIED INSTITUTIONAL BUYER STATUS |
(Please check the applicable subparagraphs):
| 1. | ☐ We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”) (a “QIB”)). |
| 2. | ☐ We are subscribing for the Holdings Shares as a fiduciary or agent for one or more investor accounts, and each owner of such account is a QIB. |
*** OR ***
| B. | INSTITUTIONAL ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs): |
| ☐ | We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.” |
| ☐ | We are not a natural person. |
*** AND ***
| C. | AFFILIATE STATUS |
(Please check the applicable box)
BUYER
| ☐ | is: |
| ☐ | is not: |
an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer or acting on behalf of an affiliate of the Issuer.
*** AND ***
| D. | 13D-3 BENEFICIAL OWNERSHIP INFORMATION |
This page should be completed by Buyer and constitutes a part of the Agreement.
Rule 501(a) under the Securities Act, in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. Buyer has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to Buyer and under which Buyer accordingly qualifies as an “accredited investor.”
| ☐ | Any bank as defined in section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity; |
| ☐ | Any broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934, as amended; |
| ☐ | Any insurance company as defined in section 2(a)(13) of the Securities Act; |
| ☐ | Any investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”) or a business development company as defined in section 2(a)(48) of the Investment Company Act; |
| ☐ | Any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958, as amended; |
| ☐ | Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; |
| ☐ | Any employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”; |
| ☐ | Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940, as amended; |
| ☐ | Any (i) corporation, limited liability company or partnership, (ii) Massachusetts or similar business trust, or (iii) organization described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, not formed for the specific purpose of acquiring the securities offered, and with total assets in excess of $5,000,000; |
| ☐ | Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Section 230.506(b)(2)(ii) of Regulation D; or |
| ☐ | Any entity in which all of the equity owners are “accredited investors” meeting one or more of the above tests. |
| ☐ | Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; |
| ☐ | Any natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, exceeds $1,000,000. For purposes of calculating a natural person’s net worth under this category: (a) the person’s primary residence shall not be included as an asset; (b) indebtedness that is secured by the |
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| person’s primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability. This category will not apply to any calculation of a person’s net worth made in connection with a purchase of securities in accordance with a right to purchase such securities, provided that (A) such right was held by the person on July 20, 2010, (B) the person qualified as an accredited investor on the basis of net worth at the time the person acquired such right and (C) the person held securities of the same issuer, other than such right, on July 20, 2010; |
| ☐ | Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; |
| ☐ | Any natural person holding in good standing one or more professional certifications or designations or credentials from an accredited educational institution that the Commission has designated as qualifying an individual for accredited investor status. In determining whether to designate a professional certification or designation or credential from an accredited educational institution for purposes of this category, the Commission will consider, among others, the following attributes: (i) the certification, designation, or credential arises out of an examination or series of examinations administered by a self-regulatory organization or other industry body or is issued by an accredited educational institution, (ii) the examination or series of examinations is designed to reliably and validly demonstrate an individual’s comprehension and sophistication in the areas of securities and investing, (iii) persons obtaining such certification, designation, or credential can reasonably be expected to have sufficient knowledge and experience in financial and business matters to evaluate the merits and risks of a prospective investment and (iv) an indication that an individual holds the certification or designation is either made publicly available by the relevant self-regulatory organization or other industry body or is otherwise independently verifiable; |
| ☐ | Any natural person who is a “knowledgeable employee,” as defined in rule 3c-5(a)(4) under the Investment Company Act of 1940 (17 CFR 270.3c-5(a)(4)), of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in section 3 of such act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of such act; |
| ☐ | Any “family office,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940 (17 CFR 275.202(a)(11)(G)-1): (i) With assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered, and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment; and |
| ☐ | Any “family client,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940 (17 CFR 275.202(a)(11)(G)-1)), of a family office meeting the requirements in the prior category and whose prospective investment in the issuer is directed by such family office pursuant to clause (iii) thereunder. |
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