Item 1.01 Entry into a Material Definitive Agreement.
On June 1, 2023, Seaport Global Acquisition II
Corp., a Delaware corporation (“SGII”), entered into an Agreement and Plan of Merger (“Merger Agreement”)
by and among SGII, Lithium Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of SGII (“Merger Sub”),
and American Battery Materials, Inc. (OTC Pink: BLTH), a Delaware corporation (“ABM”).
ABM is an exploration stage company focused on
environmentally friendly direct lithium extraction and other minerals critical to the global energy transition.
Pursuant to the Merger Agreement, Merger Sub will
merge with and into ABM, with ABM surviving the merger (the “Merger” and, together with the other transactions contemplated
by the Merger Agreement, the “Transactions”). As a result of the Transactions, ABM will become a wholly-owned subsidiary
of SGII, with the stockholders of ABM becoming stockholders of SGII.
Under the Merger Agreement, the stockholders of
ABM will receive a number of shares of SGII common stock based on an exchange ratio (the “Exchange Ratio”), the numerator
of which is equal to the number of shares of SGII common stock equal to the quotient of (i) (A) $160,000,000, plus (B) Closing
Date Cash, minus (C) the Closing Date Indebtedness, plus (D) the aggregate exercise price of all Company Warrants (excluding
any Company Warrants that will terminate by their terms upon the Effective Time), divided by (ii) $10.00, and the denominator of
which is equal to the number of outstanding shares of ABM, including shares issuable upon conversion of Company Convertible Notes (all
capitalized terms in the Exchange Ratio as defined in the Merger Agreement). The holders of Specified Convertible Notes will receive a
number of shares of SGII common stock determined by dividing all principal and accrued interest under such notes by the applicable conversion
prices set forth in such notes. The holders of ABM options and warrants will receive SGII options and warrants equal to the number of
shares of ABM Common Stock subject to the ABM options and warrants multiplied by the Exchange Ratio, at an exercise price per share equal
to the exercise price of the ABM options and warrants divided by the Exchange Ratio.
In connection with the Transactions, Seaport Global
SPAC II, LLC (the “Sponsor”), SGII’s sponsor from its initial public offering, agreed to enter into a lock-up
agreement (the “Sponsor Lock-Up Agreement”), pursuant to which the SGII common stock held by the Sponsor will be subject
to transfer restrictions until the earlier of (i) one year from the closing of the Merger, (ii) the date on which the last sales price
of SGII common stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations)
for any 20 trading days within any 30-trading day period commencing at least 150 trading days after the closing of the Merger and (iii)
the date on which SGII completes a liquidation, merger, capital stock exchange or other similar transaction that results in all of SGII’s
stockholders having the right to exchange their shares of common stock for cash, securities or other property.
Certain stockholders of ABM receiving shares of
SGII common stock in connection with the Merger have agreed to enter into lock-up agreements (the “Stockholder Lock-Up Agreement”),
pursuant to which such stockholders will be subject to the same lockup period to which the Sponsor will be subject for all shares of SGII
common stock held by such persons.
The Transactions are expected to be consummated
in 2023, after the required approval by the stockholders of SGII and the fulfillment of certain other conditions.
The following summaries of the Merger Agreement
and the other agreements to be entered into by the parties are qualified in their entirety by reference to the text of the Merger Agreement
and agreements entered into in connection therewith. The Merger Agreement is attached as Exhibit 2.1 hereto and incorporated herein by
reference. Capitalized terms not defined herein have the meaning given in the Merger Agreement.
Representations and Warranties
The Merger Agreement contains representations
and warranties of ABM relating to, among other things, due organization and qualification; subsidiaries; the authorization, performance
and enforceability against ABM of the Merger Agreement; absence of conflicts; the consent, approval or authorization of governmental authorities;
pre-transaction capitalization; SEC reports, financial statements, Sarbanes-Oxley Act and absence of undisclosed liabilities; litigation
and proceedings; compliance with laws; intellectual property matters; contracts and absence of defaults; benefit plans; labor matters;
tax matters; brokers’ fees; insurance; assets and real property, including mining claims; environmental matters; absence of certain
changes or events; transactions with affiliates; internal controls; permits; customers and suppliers; and statements made in the Registration
Statement on Form S-4 required to be prepared in connection with the Transactions (the “Registration Statement”).
The Merger Agreement contains representations
and warranties of each of SGII and Merger Sub relating to, among other things, due organization and qualification; the authorization,
performance and enforceability against SGII and Merger Sub of the Merger Agreement; absence of conflicts; litigation and proceedings;
the consent, approval or authorization of governmental authorities; financial ability and trust account; brokers’ fees; SEC reports,
financial statements, Sarbanes-Oxley Act and absence of undisclosed liabilities; business activities and the absence of certain changes
or events; statements made in the Registration Statement; no outside reliance; tax matters; capitalization; and Nasdaq listing.
Covenants
The Merger Agreement includes customary covenants
of the parties with respect to business operations prior to consummation of the Transactions and efforts to satisfy conditions to the
consummation of the Transactions.
The Merger Agreement also contains additional
covenants of the parties, including, among others, covenants providing for SGII and ABM to cooperate in the preparation of the Registration
Statement.
Conditions to Closing
Mutual Conditions
Consummation of the Transactions is conditioned
on approval thereof by SGII’s stockholders. In addition, each party’s obligation to consummate the Merger is conditioned upon,
among other things:
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all necessary permits, approvals, clearances, and consents of or filings with regulatory authorities having been procured or made, as applicable; |
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no order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, or statute, rule or regulation being in force that enjoins or prohibits the consummation of the Transactions; |
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SGII having at least $5,000,001 of net tangible assets remaining prior to the Merger after taking into account any redemptions by holders of SGII common stock that properly demand that SGII redeem their common stock for their pro rata share of the trust account prior to the closing of the Transactions; |
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the Registration Statement on Form S-4 having become effective in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), no stop order having been issued by the SEC that remains in effect with respect to the Form S-4, and no proceeding seeking such a stop order having been threatened or initiated by the SEC that remains pending; |
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the delivery by each party to the other party of a certificate with respect to (i) the truth and accuracy of such party’s representations and warranties as of execution of the Merger Agreement and as of the closing of the Transactions and (ii) the performance by such party of covenants contained in the Merger Agreement required to by complied with by such party in all material respects as of or prior to the closing; |
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approval of the Transactions by the SGII’s stockholders; and |
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approval of the Transactions by ABM’s stockholders. |
ABM’s Conditions to Closing
The obligations of ABM to consummate the Merger are also conditioned
upon, among other things:
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the accuracy of the representations and warranties of SGII and Merger Sub (subject to certain bring-down standards); |
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performance of the covenants of SGII and Merger Sub to be performed by such parties in all material respects as of or prior to the closing; |
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SGII filing an amended and restated certificate of incorporation with the Secretary of State of the State of Delaware and adopting amended and restated bylaws, each in substantially the form as attached to the Merger Agreement; |
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the Sponsor having executed and delivered an earnout agreement with SGII and ABM in form and substance mutually satisfactory to the parties (the “Sponsor Earnout Agreement”) prior to the Registration Statement becoming effective; |
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SGII executing the Stockholders’ Agreement (as defined below); |
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SGII executing the Sponsor Lock-Up Agreement; |
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the SGII common stock to be issued pursuant to the Merger Agreement and underlying the exchanged options and warrants having been approved for listing on a national securities exchange; and |
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the Available Closing Date Cash being equal to or in excess of $20,000,000.00. |
SGII’s and Merger Sub’s Conditions to Closing
The obligations of SGII and Merger Sub to consummate
the Merger are also conditioned upon, among other things:
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the accuracy of the representations and warranties of ABM (subject to certain bring-down standards); |
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performance of the covenants of ABM to be performed by ABM in all material respects as of or prior to the closing; |
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all directors of ABM that will not continue as directors of ABM having executed and delivered to SGII letters of resignation; |
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ABM having implemented certain measures related to compliance with the Sarbanes-Oxley Act; |
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ABM having executed and delivered the Sponsor Earnout Agreement prior to the Registration Statement becoming effective; |
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certain executives of ABM each executing and delivering an employment agreement with SGII and/or ABM in form and substance mutually satisfactory to such parties; |
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certain employees of ABM each executing and delivering an earnout agreement with SGII in form and substance mutually satisfactory to such parties; |
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certain stockholders of ABM each executing and delivering a restrictive covenant agreement with SGII and ABM in form and substance mutually satisfactory to such parties; |
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certain stockholders of ABM each executing and delivering a Stockholder Lock-Up Agreement; and |
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certain stockholders of ABM executing and delivering the Stockholders’ Agreement (as defined below) |
Waiver
If permitted under applicable law, SGII or ABM
may waive any inaccuracies in the representations and warranties made to such party and contained in the Merger Agreement and waive compliance
with any agreements or conditions for the benefit of such party contained in the Merger Agreement. However, pursuant to SGII’s existing
amended and restated certificate of incorporation, the condition requiring that SGII have at least $5,000,001 of net tangible assets may
not be waived.
Termination
The Merger Agreement may be terminated at any
time, but not later than the closing of the Merger, as follows:
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by mutual written consent of SGII and ABM; |
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by either SGII or ABM if the Transactions are not consummated on or before the later of August 19, 2023 and such later date as SGII’s stockholders may approve, provided that the terminating party shall not have been the primary cause of the failure to close by such date; |
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by either SGII or ABM if consummation of the Transactions is permanently enjoined or prohibited by the terms of a final, non-appealable order, decree or ruling of a governmental entity or a statute, rule or regulation, provided that the terminating party shall not have been the primary cause of thereof; |
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by either SGII or ABM if the other party has breached any of its representations, warranties or covenants, such that the closing conditions would not be satisfied at the closing, and has not cured such breach within 45 days of notice from the other party of its intent to terminate, provided that the terminating party is itself not in breach; |
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by SGII if the written consent of ABM’s stockholders approving the Transactions has not been obtained and delivered to SGII within seven (7) days following the execution of the Merger Agreement; and |
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by either SGII or ABM if, at the SGII shareholder meeting, the Merger Agreement shall fail to be approved by the required vote described herein (subject to any adjournment or recess of the meeting). |
Registration Rights Agreement
In connection with the execution of the
Merger Agreement, the Sponsor and certain of ABM’s stockholders have entered into an Amended and Restated Registration Rights
Agreement (the “Registration Rights Agreement”) pursuant to which SGII
will agree to file a shelf registration statement with respect to the registrable securities under the Registration Rights
Agreement. SGII also agreed to provide customary “piggyback” registration rights. The Registration Rights Agreement also
provides that SGII will pay certain expenses relating to such registrations and indemnify the stockholders against certain
liabilities. The Registration Rights Agreement is attached as Exhibit 10.1 hereto and incorporated herein by reference.
Stockholders’ Agreement
At the closing of the Merger, the Sponsor and
certain stockholders of ABM will enter into a Stockholders’ Agreement (the “Stockholders’ Agreement”) with
SGII, pursuant to which the Sponsor will have the right to designate up to two directors for election to SGII’s board of directors
for so long as it maintains ownership of a certain percentage interest in SGII.
Stockholder Support Agreement
In connection with the execution of the
Merger Agreement, certain stockholders of ABM who hold a majority of the outstanding stock of ABM have entered into a support
agreement pursuant to which they have agreed to vote in favor of the Transactions at a meeting called to approve the Transactions
by ABM stockholders (or to act by written consent approving the Transactions). The Stockholder Support Agreement is
attached as Exhibit 10.2 hereto and incorporated herein by reference.
Sponsor Support Agreement
In connection with the execution of the Merger
Agreement, the Sponsor and ABM have entered into a support agreement pursuant to which it has agreed to vote in favor of the Transactions
at a meeting called to approve the Transactions by SGII stockholders (or to act by written consent approving the Transactions). The Sponsor Support Agreement is attached as Exhibit 10.3 hereto and incorporated herein by reference.
Financing Arrangements
In connection with the execution of the Merger
Agreement, SGII and ABM entered into a prepaid forward purchase agreement (“FSPA”) with (i) Meteora Special Opportunity
Fund I, LP, (ii) Meteora Capital Partners, LP and (iii) Meteora Select Trading Opportunities Master, LP (collectively, "Meteora").
Pursuant to the forward purchase agreement, Meteora is expected to purchase up to 4,200,000 shares of SGII Class A common stock (“FPA
Shares”) subject to a cap of 9.9% of outstanding shares on a post-Transaction basis, at a per share price no more than the price
per share paid to redeeming SGII public shareholders in connection with the vote to approve the Transactions (the “redemption
price”), or up to approximately US $43 million based on the current redemption price, in advance of the consummation of the
Transactions. In certain circumstances, including if Meteora purchases less than 4,200,000 FPA Shares, it will be entitled to receive
warrants to purchase shares of SGII common stock in an amount equal to the difference of 4,200,000 and the number of FPA Shares purchased
in the market by Meteora and subject to the FSPA. The form of warrant shall be agreed upon by the parties within forty-five (45) days
of the execution of the FSPA. Such warrants will be exercisable at US $10.00 per share, subject to reduction upon any Dilutive Offering
Reset (as defined in the FSPA). In connection with its purchase of the FPA Shares, Meteora will waive its redemption rights in connection
with the shareholder vote to approve the Transactions. Entities and funds managed by Meteora own equity interests in the Sponsor. Such
waiver may reduce the number of shares of SGII Class A common stock redeemed in connection with the Transactions, which reduction could
alter the perception of the potential strength of the Transactions.
Following the closing
of the Transactions, an amount equal to the number of FPA Shares multiplied by the redemption price, less 1.00%, will be prepaid to Meteora.
The remaining 1.00% (the “Prepayment Shortfall”) will be released to SGII at the closing of the Transactions. The FPA
Shares held by Meteora and subject to the FSPA may be sold into the market by Meteora at any time following the closing of the Transactions.
Meteora is entitled to sell into the market FPA Shares without any payment to SGII until the proceeds from such sales equals the Prepayment
Shortfall. SGII may receive up to US $41,580,000 from the termination of all or a portion of the FSPA transaction at $10.00 per terminated
FPA Share, subject to reduction upon any Dilutive Offering Reset. To the extent Meteora elects not to terminate the FSPA transaction prior
to the maturity date, SGII will be entitled to receive from Meteora the number of FPA Shares not so terminated, and Meteora will be entitled
to “maturity” consideration, paid in Shares or cash, subject to the terms of the FSPA. The maturity date is the third anniversary
of the closing of the Transactions, subject to acceleration at the Seller’s option upon the volume weighted average price per share
being at or below $5.00 per share for any 20 trading days during a 30 consecutive trading day-period and upon any delisting of SGII common
stock.
The FSPA provides that
Meteora is entitled to transfer and/or assign all or a portion of its rights and obligations under the FSPA to one or more third parties
of its choosing. Additionally, according to the terms of the FSPA, SGII has agreed to indemnify Meteora against certain losses in connection
with the FSPA and to pay certain consideration and fees, including without limitation a quarterly fee, a breakage fee and share consideration
equal to 300,000 shares at the redemption price.
Note that this summary
is qualified entirely by the specific terms of the forward purchase agreement as appended hereto as Exhibit 10.4.