UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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:
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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 1.01Entry into a Material Definitive Agreement.
As previously announced on October 31, 2022, Perception Capital Corp. II (the “company”) issued a convertible promissory note in the aggregate principal amount of up to $720,000 (the “original extension loan”) to its sponsor, Perception Capital Partners II LLC, a Delaware limited liability company (the “sponsor”). On April 10, 2023, the company issued an amended and restated convertible promissory note (the “A&R extension loan”) to the sponsor, which amended and restated the original extension loan in its entirety to, among other things, increase the aggregate principal amount available thereunder from $720,000 to $1,200,000, the effectiveness of which is conditioned upon the approval of the company’s shareholders of the proposal to amend the company’s amended and restated memorandum and articles of association to extend the date by which the company must consummate an initial business combination from May 1, 2023 to November 1, 2023. Pursuant to the A&R extension loan, the sponsor has agreed to continue its monthly contributions of $0.04 for each Class A ordinary share of the company, par value $0.0001 per share (“Class A ordinary shares”), then outstanding until the earlier of (i) the date of the extraordinary general meeting held in connection with the shareholder vote to approve an initial business combination and (ii) the aggregate advances under the A&R extension loan totaling $1,200,000.
Up to $1,200,000 of the loans under the A&R extension loan may be settled in whole warrants to purchase Class A ordinary shares at a conversion price equal to $1.00 per warrant (the “extension loan warrants”). The extension loan warrants 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. The extension loan warrants will become exercisable 30 days after the completion of our initial business combination. Each extension loan warrant will entitle the holder thereof to purchase one Class A ordinary share at an exercise price of $11.50 per share, subject to certain adjustments. The extension loan warrants are identical to the warrants included in the units sold in the company’s initial public offering, except that, so long as they are held by the sponsor or its permitted transferees: (1) they will not be redeemable by the company; (2) they (including the Class A ordinary shares issuable upon exercise of the extension loan warrants) may not, subject to certain limited exceptions, be transferred, assigned or sold by the sponsor until 30 days after the completion of the company’s initial business combination; (3) they may be exercised by the holders on a cashless basis; and (4) they (including the Class A ordinary shares issuable upon exercise of the extension loan warrants) are entitled to registration rights. In addition, the extension loan warrants expire at 5:00 p.m., New York City time, five years after the completion of the company’s initial business combination, or earlier upon redemption or liquidation.
The contributions will not bear any interest, and will be repayable by the company to the sponsor upon the earlier of (i) the date by which the company must complete an initial business combination and (ii) the consummation of an initial business combination. The company’s board of directors will have the sole discretion whether to continue extending for additional months until $1,200,000 in the aggregate has been loaned, and if the company’s board of directors determines not to continue extending for additional months, the sponsor’s obligation to make additional contributions will terminate. If this occurs, the company would wind up the company’s affairs and redeem 100% of the outstanding Class A ordinary shares in accordance with the procedures set forth in the company’s amended and restated memorandum and articles of association.
The maturity date of the A&R extension loan may be accelerated upon the occurrence of an “event of default” (as defined therein). Any outstanding principal under the A&R extension loan may be prepaid at any time by the company, at its election and without penalty, provided, however, that the sponsor shall have a right to first convert such principal balance as described in Section 6 of the A&R extension loan upon notice of such prepayment.
The foregoing description of the A&R extension loan does not purport to be complete and is qualified in its entirety by the terms and conditions of the A&R extension loan, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
Item 2.03Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information disclosed under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03 to the extent required herein.
Item 3.02Unregistered Sales of Equity Securities.
The information disclosed under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02 to the extent required herein.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of the United States Private Securities Litigation Reform Act of 1995 and forward-looking information within the meaning of applicable Canadian securities laws. Forward-looking statements may include, but are not limited to, statements about the parties’ ability to close the proposed Business Combination, including PCCT and Spectaire being able to receive all required regulatory, third-party and shareholder approvals for the proposed Business Combination; the anticipated benefits of the proposed Business Combination, including the potential amount of cash that may be available to the combined company upon consummation of the proposed Business Combination and the use of the net proceeds following the redemptions by PCCT public shareholders; the anticipated timing of the proposed Business Combination; Spectaire’s expectation that its common shares will be accepted for listing on the Nasdaq Stock Market following the closing of the proposed Business Combination; the financial and business performance of Spectaire; Spectaire’s anticipated results from operations in future periods; the products and services offered by Spectaire and the markets in which it operates; the impact of health epidemics, including the COVID-19 pandemic, on Spectaire’s business and the actions Spectaire may take in response thereto. In addition, any statements that refer to projections (including EBITDA and cash flow), forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. Forward-looking statements are typically identified by words such as “plan,” “believe,” “expect,” “anticipate,” “intend,” “outlook,” “estimate,” “forecast,” “project,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict,” “should,” “would” and other similar words and expressions, but the absence of these words does not mean that a statement is not forward-looking. The forward-looking statements are based on the current expectations of the management of PCCT and Spectaire, as applicable, and are inherently subject to uncertainties and changes in circumstances and their potential effects and speak only as of the date of such statement. There can be no assurance that future developments will be those that have been anticipated. Forward-looking statements reflect material expectations and assumptions, including, without limitation, expectations, and assumptions relating to: the future price of metals; the stability of the financial and capital markets; PCCT and Spectaire being able to receive all required regulatory, third-party, and shareholder approvals for the proposed Business Combination; the amount of redemptions by PCCT public shareholders; and other current estimates and assumptions regarding the proposed Business Combination and its benefits. Such expectations and assumptions are inherently subject to uncertainties and contingencies regarding future events and, as such, are subject to change. Forward-looking statements involve a number of risks, uncertainties or other factors that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those discussed and identified in public filings made by PCCT with the SEC and the following: the amount of any redemptions by existing holders of PCCT Class A ordinary shares being greater than expected, which may reduce the cash in trust available to Spectaire upon the consummation of the Business Combination; the occurrence of any event, change or other circumstances that could give rise to the termination of the business combination agreement and/or payment of the termination fees; the outcome of any legal proceedings that may be instituted against Spectaire or PCCT following announcement of the proposed Business Combination; the inability to complete the proposed Business Combination due to, among other things, the failure to obtain PCCT shareholder approval; the risk that the announcement and consummation of the proposed Business Combination disrupts Spectaire’s current plans; the ability to recognize the anticipated benefits of the proposed Business Combination; unexpected costs related to the proposed Business Combination; the risks that the consummation of the proposed Business Combination is substantially delayed or does not occur, including prior to the date on which PCCT is required to liquidate under the terms of its charter documents; Spectaire’s ability to operate as a going concern; Spectaire’s requirement of significant additional capital; Spectaire’s limited operating history; Spectaire’s history of losses; Spectaire’s ability to attract qualified management; Spectaire’s ability to adapt to rapid and significant technological change and respond to introductions of new products in order to remain competitive; Spectaire receives a significant portion of its revenues from a small number of customers and the loss of, or nonperformance by, one or more significant customers could adversely affect Spectaire’s business; Spectaire relies heavily on manufacturing operations to produce the products and the business could be adversely affected by disruptions of the manufacturing operation; Spectaire’s future growth depends on a single product; changes in governmental regulations may reduce demand for Spectaire’s products or increase Spectaire’s expenses; the effects
of the COVID-19 pandemic or other global health crises on Spectaire’s business plans, financial condition and liquidity; changes or disruptions in the securities markets; legislative, political or economic developments; the need to obtain permits and comply with laws and regulations and other regulatory requirements; risks of accidents, equipment breakdowns, and labor disputes or other unanticipated difficulties or interruptions; the possibility of cost overruns or unanticipated expenses in development programs; potential future litigation; and Spectaire’s lack of insurance covering all of Spectaire’s operations.
Should one or more of these risks or uncertainties materialize or should any of the assumptions made by the management of Spectaire and PCCT prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements.
All subsequent written and oral forward-looking statements concerning the proposed Business Combination or other matters addressed herein and attributable to Spectaire, PCCT or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements contained or referred to herein. Except to the extent required by applicable law or regulation, Spectaire and PCCT undertake no obligation to update these forward-looking statements to reflect events or circumstances after the date hereof to reflect the occurrence of unanticipated events.
Additional Information and Where to Find It
In connection with the proposed Business Combination, PCCT has filed a proxy statement (File No. 001-40976) with the SEC on March 29, 2023 which is subject to change and to be distributed to holders of PCCT’s ordinary shares in connection with PCCT’s solicitation of proxies for the vote by PCCT’s shareholders with respect to the Business Combination and other matters as described in the proxy statement. After the proxy statement has been reviewed by the SEC, PCCT will mail a definitive proxy statement, when available, to its shareholders. The definitive proxy statement will include information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to PCCT’s shareholders in connection with the Proposed Business Combination. PCCT will also file other documents regarding the Proposed Business Combination with the SEC. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, INVESTORS AND SECURITY HOLDERS OF PCCT ARE URGED TO READ THE PROXY STATEMENT, THE DEFINITIVE PROXY STATEMENT AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED BUSINESS COMBINATION, INCLUDING ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED BUSINESS COMBINATION.
Investors and security holders are able to obtain free copies of the proxy statement and all other relevant documents that are filed or that will be filed with the SEC by PCCT through the website maintained by the SEC at www.sec.gov. The documents filed by PCCT with the SEC also may be obtained by contacting PCCT at 315 Lake Street East, Suite 301, Wayzata, MN, or by calling (952) 456-5300.
Participants in Solicitation
Spectaire, PCCT and certain of their respective directors, executive officers and other members of management and employees may, under SEC rules, be deemed to be participants in the solicitation of proxies from PCCT’s shareholders in connection with the Business Combination. A list of the names of such persons and information regarding their interests in the Business Combination will be contained in the definitive proxy statement when available. You may obtain free copies of these documents free of charge by directing a written request to Spectaire or PCCT. The definitive proxy statement will be mailed to PCCT’s shareholders as of a record date to be established for voting on the Business Combination when it becomes available.
No Offer or Solicitation
This Current Report on Form 8-K and the information contained herein do not constitute (i) (a) a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed Business Combination or (b) an offer to sell or the solicitation of an offer to buy any security, commodity or instrument or related derivative, nor shall there be any sale of securities in any jurisdiction in which the offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction or (ii) an offer or commitment to lend, syndicate or arrange a financing, underwrite or purchase or act as an agent or advisor or in any other capacity
with respect to any transaction, or commit capital, or to participate in any trading strategies. No offer of securities in the United States or to or for the account or benefit of U.S. persons (as defined in Regulation S under the U.S. Securities Act) shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended (the “Securities Act”), or an exemption therefrom. Investors should consult with their counsel as to the applicable requirements for a purchaser to avail itself of any exemption under the Securities Act.
Item 9.01Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit No. |
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Description |
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10.1 |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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.
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Perception Capital Corp. II |
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Date: April 12, 2023 |
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By: |
/s/ Rick Gaenzle |
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Name: |
Rick Gaenzle |
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Title: |
Chief Executive Officer |
Exhibit 10.1
THIS AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE (THIS “NOTE”) AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE. THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE MAKER MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE MAKER TO THE EFFECT THAT ANY SALE OR OTHER DISPOSITION IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
PERCEPTION CAPITAL CORP. II
AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE
Principal Amount: Up to $1,200,000Dated as of April 10, 2023
This Note amends and restates the Convertible Promissory Note, dated as of October 31, 2022, by and between Maker and Payee (each, as defined below), in its entirety.
Perception Capital Corp. II, a Cayman Islands exempted company limited by shares (“Maker”), promises to pay to Perception Capital Partners II LLC, a Delaware limited liability company (“Payee”), or order, the principal balance as set forth on Schedule A hereto in cash in lawful money of the United States of America, on the terms and conditions described below; which schedule shall be updated from time to time by the parties hereto to reflect all advances and re-advances outstanding under this Note; provided that at no time shall the aggregate of all advances and re-advances outstanding under this Note exceed one million and two hundred thousand dollars ($1,200,000) (the “Maximum Amount”). Any advance hereunder shall be made by Payee pursuant to Section 2 below and shall be set forth on Schedule A. All payments on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by Maker to such account as Payee may from time to time designate by written notice in accordance with the provisions of this Note.
1.Principal. The entire unpaid principal balance under this Note shall be due and payable in full on the earlier of: (i) the date by which Maker has to complete a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses (an “Initial Business Combination”) pursuant to Section 49.7 of its Amended and Restated Memorandum and Articles of Association (as it may be amended from time to time), and (ii) immediately upon consummation of an Initial Business Combination (such earlier date of (i) and (ii), the “Maturity Date”), unless accelerated upon the occurrence of an Event of Default (as defined below). Any outstanding principal balance under this Note may be prepaid at any time by Maker, at its election and without penalty; provided, however, that Payee shall have a right to first convert such principal balance pursuant to Section 6 below upon notice of such prepayment. Under no circumstances shall any individual, including, but not limited to, any officer, director, employee or shareholder of Maker, be obligated personally for any obligations or liabilities of Maker hereunder.
2.Drawdowns. Payee shall advance to Maker, beginning on November 1, 2022, and thereafter on the 1st of each month until the earlier of (i) the date of the extraordinary general meeting held in connection with the shareholder vote to approve an Initial Business Combination and (ii) the Payee having advanced aggregate contributions equal to the Maximum Amount, an amount equal to the product of $0.04 and the number of then-outstanding Class A ordinary shares of Maker. Any drawdowns under this
Note which cause the aggregate of all advances and re-advances outstanding under this Note to exceed $720,000 are conditioned upon the approval by the shareholders of Maker of the proposal to extend the date by which Maker must complete an Initial Business Combination presented at the extraordinary general meeting of shareholders of Maker to be held on or about April 27, 2023.
3.Interest. No interest shall accrue on the unpaid principal balance of this Note.
4.Application of Payments. All payments 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 attorney’s fees, then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Note.
5.Events of Default. The occurrence of any of 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 on 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 sixty (60) consecutive days.
(a)Optional Conversion. At the option of Payee, at any time on or prior to the Maturity Date, any unpaid principal amount outstanding under this Note (or any portion thereof) up to $1,200,000 in the aggregate may be converted into whole warrants of Maker to purchase Class A ordinary shares of Maker (“Warrants”) at a conversion price (the “Conversion Price”) equal to $1.00 per Warrant. If Payee elects such conversion, the terms of such Warrants issued in connection with such conversion shall be identical to the warrants issued to Payee pursuant to the Sponsor Warrants Purchase Agreement, dated as of October 27, 2021, by and between Payee and Maker, in connection with Maker’s initial public offering that was consummated on November 1, 2021 (the “Private Placement Warrants”), including that each Warrant will entitle the holder thereof to purchase one Class A ordinary share of Maker at a price of $11.50 per share, subject to the same adjustments applicable to the Private Placement Warrants. Before this Note may be converted under this Section 6(a), Payee shall surrender this Note, duly endorsed, to Maker and shall state therein the amount of the unpaid principal balance of this Note to be converted and the name or names in which the certificates for Warrants are to be issued (or the book-entries to be made to reflect ownership of such Warrants with Maker’s transfer agent); provided that such principal amount is no greater than $1,200,000. To the extent that this Note is not converted and/or repaid in full, a replacement Note shall be issued to Payee reflecting the remaining unpaid principal amount not so converted and/or repaid. 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 Warrants upon such conversion shall be treated for all purposes as the record holder or holders of such Warrants as of such date. Each such newly issued Warrant shall include a restrictive legend that contemplates the same restrictions as the Private Placement Warrants. The Warrants and Class A ordinary shares of Maker issuable upon exercise of the Warrants shall each constitute a “Registrable Security” pursuant to that certain Registration Rights Agreement, dated as of October 27, 2021, by and among Maker, Payee and the other parties thereto.
(b)Remaining Principal. The entire accrued and unpaid principal balance of this Note that is not converted into Warrants shall continue to remain outstanding and to be subject to the conditions of this Note or such replacement Note referred to in Section 6(a).
(c)Fractional Warrants. No fractional Warrants shall be issued upon conversion of this Note. In lieu of any fractional Warrants that would otherwise be issuable to Payee upon conversion of this Note, Maker shall pay to Payee an amount equal to the product obtained by multiplying the Conversion Price by the fraction of a Warrant not issued pursuant to the previous sentence.
(d)Effect of Conversion. Upon conversion of this Note and the payment of any amounts specified in Section 6(c) and otherwise remaining outstanding, this Note shall be cancelled and void without further action of Maker or Payee, and Maker shall be forever released from all its obligations and liabilities under this Note.
(a)Upon the occurrence of an Event of Default specified in Section 5(a), 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 thereunder, 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 Section 5(b) or Section 5(c), the unpaid principal balance of this Note, and all other sums 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.
8.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 the 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, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.
9.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.
10.Notices. All notices, statements or other documents which are required or contemplated by this Note shall be: (i) in writing and delivered personally or sent by first class registered or certified mail or overnight courier service to the address most recently provided to such party or such other address as may be designated in writing by such party, (ii) by facsimile to the number most recently provided to such party or such other facsimile number as may be designated in writing by such party or (iii) 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 delivered or 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 (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
11.Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
12.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.
13.Trust Waiver. Notwithstanding anything herein to the contrary, 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 proceeds of Maker’s initial public offering (including the deferred underwriters discounts and commissions) and proceeds of the sale of the Private Placement Warrants were deposited, as described in greater detail in the registration statement on Form S-1 (File No. 333-255107) filed by Maker with the U.S. Securities and Exchange Commission, that was declared effective on October 27, 2021, and the related prospectus, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the trust account for any reason whatsoever.
14.Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of Maker and Payee.
15.Assignment; Successors and Assigns. Subject to Section 16, no assignment or transfer of this Note or any rights or obligations hereunder may be made by either 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. This Note shall be binding upon and benefit the permitted successors and permitted assigns of a party hereto.
16.Transfer of this Note or Securities Issuable on Conversion. With respect to any sale or other disposition of this Note 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 16 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 the principal amount 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 for the Private Placement Warrants under the Letter Agreement, dated as of October 27, 2021, by and between Maker, Payee and the other parties thereto.
17.Acknowledgment. Payee is acquiring this Note for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution thereof. Payee understands that the acquisition of this Note involves substantial risk. Payee has experience as an investor in securities of companies and acknowledges that it is able to fend for itself, can bear the economic risk of its investment in this Note, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of this investment in this Note and protecting its own interests in connection with this investment.
[Signature page follows.]
IN WITNESS WHEREOF, Maker, 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.
MAKER:
PERCEPTION CAPITAL CORP. II
By:/s/ Rick Gaenzle
Name: Rick Gaenzle
Title:Chief Executive Officer
Acknowledged and agreed as of the day and year first above written.
PAYEE:
PERCEPTION CAPITAL PARTNERS II LLC
By:/s/ Scott Honour
Name:Scott Honour
Title:Authorized Signatory
[Signature Page to Amended and Restated Promissory Note (Extension Loan)]
SCHEDULE A
Subject to the terms and conditions set forth in the Note to which this schedule is attached, the principal balance due under the Note shall be set forth in the table below and shall be updated from time to time to reflect all advances and re-advances outstanding under the Note.
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-8?20$3;8T.P6BP^0"X99K>]
M9!:G