SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 7, 2023 (August 2, 2023)
HCM Acquisition Corp
(Exact name of registrant as specified in its charter)
Cayman Islands
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001-41241
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98-1581263
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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100 First Stamford Place,
Suite 330
Stamford, CT 06902
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code: (203) 930-2200
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☒
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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))
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Securities registered pursuant to Section 12(b) of the Act:
Title of each class
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Trading
Symbol(s)
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Name of each exchange on
which registered
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Units, each consisting of one Class A ordinary share and one-half of one Redeemable Warrant
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HCMAU
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The Nasdaq Stock Market LLC
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Class A ordinary shares, par value $0.0001 per share
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HCMA
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The Nasdaq Stock Market LLC
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Redeemable Warrants, each whole warrant exercisable for one Class A ordinary share at a price of $11.50 per share
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HCMAW
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The Nasdaq Stock Market LLC
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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 1.01.
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Entry into a Material Definitive Agreement.
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Amended and Restated Business Combination Agreement
On August 2, 2023, HCM Acquisition Corp, a Cayman Islands
exempted company incorporated with limited liability (the “Company” or “HCM”), entered into an Amended and Restated Business Combination Agreement (the “A&R
BCA”), by and among MURANO PV, S.A. DE C.V., a Mexican corporation (the “Murano”), Elías Sacal Cababie, an individual (“ESC”), ES Agrupación, S.A. de C.V., a Mexican corporation (the “ESAGRUP” and collectively with ESC, the “Seller”), Murano Global
Investments Limited, a company incorporated under the laws of the Bailiwick of Jersey (with registered number 149873) having its registered office at 50 La Colomberie, St. Helier, JE2 4QB, Jersey (“PubCo”), Murano Global B.V., a Dutch
private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) under Dutch law, having its official seat in Amsterdam, the Netherlands and registered with the Dutch trade register under number 89192877 (“Dutch Murano”),
MPV Investment B.V., a private limited liability company under Dutch law, having its official seat in Amsterdam, the Netherlands and registered with the Dutch trade register under number 89196651, (“Murano Holding” and together with
Dutch Murano, the “Dutch Entities”) and Murano Global Cayman, a Cayman Islands exempted company incorporated with limited liability which is a direct wholly-owned subsidiary of PubCo (“New CayCo” and together with the Company, Seller, PubCo, Dutch
Murano and Murano Holding, the “Murano Parties”).
The A&R BCA replaces in its entirety that certain Business Combination Agreement, dated March 13, 2023, by and among the Company,
ESC and Seller and their respective affiliates (the “Initial BCA”) and was executed in order to facilitate an incorporation of the Surviving Company (as defined below) in the Bailiwick of Jersey instead of the Netherlands as previously provided for
in the Initial BCA.
The Merger (as defined below) was unanimously approved by HCM’s Board of Directors and by Murano’s Board of Directors. If the A&R
BCA is approved by HCM’s shareholders and Murano’s shareholders, and the transactions contemplated by the A&R BCA are consummated, (i) New CayCo will merge with and into HCM, the separate corporate existence of New CayCo will cease, and HCM will
be the surviving company (the “Surviving Company”) and a wholly owned direct subsidiary of PubCo (the “Merger”) and (ii) HCM will change its name to “Murano Global Hospitality Corp”. The Surviving Company is expected to be centrally managed and controlled from, and resident
for tax purposes in, the United Kingdom.
In addition, at the effective time of the Merger, (i) each issued and outstanding share of Class A Ordinary Shares and Class B Ordinary
Shares, par value $0.0001 per share, of HCM (the “HCM Ordinary Shares”) will be automatically canceled and extinguished, and each holder of HCM Ordinary Shares will be entitled to receive merger rights representing a corresponding number of PubCo
Ordinary Shares, which are held in the accounts of the exchange agent (“Merger Rights”), and (ii) each issued and outstanding warrant to purchase one share of HCM Class A Ordinary Shares will automatically cease to represent a right to acquire HCM
Class A Ordinary Shares and will automatically convert into and represent a right to acquire PubCo Ordinary Shares (“Converted Warrant”) and each Converted Warrant (a) will represent the right to acquire the number of PubCo Ordinary Shares equal to
the number of HCM Class A Ordinary Shares, (b) will have an exercise price of $11.50 per whole warrant required to purchase one PubCo Ordinary Share, and (c) will expire on the five year anniversary of the Closing Date.
Murano has made representations, warranties, and covenants in the A&R BCA, including, among others, covenants with respect to its
conduct and the conduct of its related group entities prior to the closing of the Merger (the “Closing”) and a covenant providing for HCM and the Company to jointly prepare, agree upon, and file a registration statement on Form F-4 (the “Registration
Statement”) with the U.S. Securities and Exchange Commission (the “SEC”) (which will contain a prospectus of Murano and a proxy statement of HCM). The representations and warranties made in the A&R BCA will not survive the consummation of the
Merger. Such representations, warranties, and covenants are materially consistent with such corresponding provisions in the Initial BCA.
The Closing is subject to certain customary conditions, which are materially consistent with the corresponding provisions in the Initial
BCA, including, among others: (i) obtaining the required HCM shareholder approval; (ii) completion of the reorganization in accordance with the A&R BCA; (iii) Comisión Federal de Competencia Económica of Mexico having issued antitrust approval; (iv) the absence of any governmental order, statute, rule or regulation enjoining or prohibiting the consummation of the Merger; (v)
the deadline for HCM to consummate its initial Business Combination not having passed; (vi) the approval of the Listing Application by Nasdaq and PubCo’s compliance with listing requirements of Nasdaq; (vii) the absence of any notice to PubCo of
non-compliance therewith from Nasdaq that has not been cured; (viii) the absence of any stop order issued by the SEC, and the absence of any proceeding seeking such a stop order having been threatened or initiated by the SEC which remains pending;
(viii) the absence of any law or order that is then in effect and which has the effect of making the transactions contemplated by the A&R BCA illegal or which otherwise prohibits or prevents the consummation of the transactions; (ix) the accuracy
of the representations and warranties of each party to the A&R BCA (subject to certain materiality standards set forth in the A&R BCA); and (x) compliance with each covenant by HCM and the Murano Parties. In addition, the obligation of HCM
and the Murano Parties to consummate the Merger are conditioned on (i) obtaining each of the consents set forth in the A&R BCA; (ii) obtaining Murano shareholder approvals; (iii) obtaining the New CayCo shareholder approval; and (iv) the absence
of the occurrence of a continuing material adverse effect on the Company.
The A&R BCA may be terminated by HCM or Murano under certain circumstances, including, among others: (i) by mutual written consent
of Murano and HCM; (ii) by Murano or HCM if the HCM shareholder approval is not obtained; (iii) by written notice to Murano from HCM if (a) there is any breach of any representation, warranty, covenant or agreement on the part of Murano set forth in
the A&R BCA, such that the conditions would not be satisfied at the Closing, subject to certain exceptions, or (b) the Closing has not occurred on or before the Original End Date, unless HCM is in material breach; (iv) by HCM if the Company
shareholder approval shall not have been obtained within two Business Days after the date of the A&R BCA; and (v) by written notice to HCM from Murano if there is any breach of any representation, warranty, covenant or agreement on the part of
HCM set forth in the A&R BCA, such that the conditions specified would not be satisfied at the Closing, subject to certain exceptions.
The foregoing description of the A&R BCA and the Merger does not purport to be complete and is qualified in its entirety by the
terms and conditions of the A&R BCA, a copy of which is attached hereto as Exhibit 2.1, and is incorporated herein by reference. The A&R BCA contains representations, warranties, and covenants that the parties to the A&R BCA made to each
other as of the date of the A&R BCA or other specific dates. The assertions embodied in those representations, warranties, and covenants were made for purposes of the contract among the parties and are subject to important qualifications and
limitations agreed to by the parties in connection with negotiating the A&R BCA. The A&R BCA has been attached to provide investors with information regarding its terms and is not intended to provide any other factual information about HCM,
Murano, or any other party to the A&R BCA. In particular, the representations, warranties, covenants, and agreements contained in the A&R BCA, which were made only for purposes of the A&R BCA and as of specific dates, were solely for the
benefit of the parties to the A&R BCA, may be subject to limitations agreed upon by the contracting parties, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors and
reports and documents filed with the SEC. Investors should not rely on the representations, warranties, covenants, and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the A&R
BCA. In addition, the representations, warranties, covenants, and agreements and other terms of the A&R BCA may be subject to subsequent waiver or modification. Moreover, information concerning the subject matter of the representations and
warranties and other terms may change after the date of the A&R BCA, which subsequent information may or may not be fully reflected in HCM’s or Murano’s public disclosures.
Sponsor Support Agreement
HCM and HCM Investor Holdings, LLC, (the “Sponsor”), concurrently with the execution and delivery of the A&R BCA, have entered into
an amended and restated Sponsor Support Agreement (the “A&R SSA”). The A&R Sponsor Support Agreement replaces in its entirety that certain Sponsor Support Agreement, dated March 13, 2023, by and between the Company and the Sponsor (the
“Initial SSA”) and was executed in order to facilitate the amended terms set forth in the A&R BCA.
Pursuant to the A&R SSA, Sponsor has agreed, among other things, to vote (or execute and return an action by written consent), or
cause to be voted at the HCM shareholder’s meeting (or validly execute and return and cause such consent to be granted with respect to), all of its shares of HCM Class A Ordinary Shares in favor of (A) the approval and adoption of the A&R BCA and
approval of the Merger and all other transactions contemplated by the A&R BCA, (B) against any action, agreement or transaction or proposal that would result in a breach of any covenant, representation or warranty or any other obligation or
agreement of HCM under the A&R BCA or that would reasonably be expected to result in the failure of the Merger from being consummated and (C) each of the proposals and any other matters necessary or reasonably requested by HCM for consummation of
the Merger and the other transactions contemplated by the A&R BCA.
Pursuant to the A&R SSA, consistent with the Initial SSA, the Sponsor has agreed to forfeit 1,250,000 Company Class A Ordinary
Shares and all of its warrants to purchase Company Class A Ordinary Shares upon the closing of the Megrer.
The foregoing description of the A&R SSA and the transactions contemplated thereby is not complete and is subject to, and qualified
in its entirety by reference to, the actual agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.1, and the terms of which are incorporated herein by reference.
Additional Information and Where to Find It
In connection with the proposed Merger, the Company intends to file with the SEC a Registration Statement, which will include a
preliminary proxy statement of HCM and a prospectus. The definitive proxy statement and other relevant documents will be mailed to shareholders of HCM as of a record date to be established for voting on the Merger. Shareholders of HCM and other
interested persons are advised to read, when available, the preliminary proxy statement and amendments thereto, and the definitive proxy statement because these documents will contain important information about HCM, the Company, PubCo and the
proposed transactions. Shareholders will also be able to obtain copies of the Registration Statement and the proxy statement/prospectus once they are available, without charge, by directing a request to: HCM Acquisition Corp, 100 First Stamford
Place, Suite 330, Stamford, CT 06902. These documents, once available, and HCM’s other filings and reports filed with the SEC can also be obtained, without charge, at the SEC’s internet site (http://www.sec.gov).
Participants in the Solicitation
HCM, the Company and PubCo may be considered participants in the solicitation of proxies with respect to the potential transaction
described in this communication under the rules of the SEC. Information about the directors and executive officers of HCM is set forth in HCM’s filings with the SEC. Information regarding other persons who may, under the rules of the SEC, be deemed
participants in the solicitation of the shareholders in connection with the potential transaction and a description of their direct and indirect interests will be set forth in the Registration Statement (and will be included in the proxy
statement/prospectus) and other relevant documents when they are filed with the SEC. These documents can be obtained free of charge from the sources indicated above.
Forward-Looking Statements
This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United
States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally relate to future events, including, without limitation, statements regarding the anticipated timing and benefits of the Merger, and HCM’s or the Company’s
future financial or operating performance. In some cases, you can identify forward-looking statements by terminology such as “may,” “should,” “expect,” “intend,” “will,” “estimate,” “anticipate,” “believe,” “predict,” “potential,” or “continue,” or
the negatives of these terms or variations of them or similar terminology. In addition, these forward-looking statements include, without limitation, statements regarding HCM’s and the Company’s expectations with respect to future performance and
anticipated financial impacts of the Merger, the satisfaction of the closing conditions to the Merger, and the timing of the completion of the Merger. Such forward-looking statements are subject to risks, uncertainties (some of which are beyond the
control of the Company and/or HCM), and other factors which could cause actual results to differ materially from those expressed or implied by such forward-looking statements. These forward-looking statements are based upon estimates and assumptions
that, while considered reasonable by HCM and its management, and the Company and its management, as the case may be, are inherently uncertain. Factors that may cause actual results to differ materially from current expectations include, without
limitation: (1) the occurrence of any event, change, or other circumstances that could give rise to the termination of the definitive agreements respecting the Merger; (2) the outcome of any legal proceedings that may be instituted against HCM, the
Company, PubCo or others following the announcement of the Merger; (3) the inability to complete the Merger due to the failure to obtain approval of the shareholders of HCM or the SEC’s declaration of the effectiveness of the prospectus/proxy
statement to be filed by HCM and the Company or to satisfy other conditions to closing; (4) changes to the proposed structure of the Merger that may be required or appropriate as a result of applicable laws or regulations; (5) the ability of PubCo to
meet applicable listing standards following the consummation of the Merger; (6) the risk that the Merger disrupts current plans and operations of the Company as a result of the announcement and consummation of the Merger; (7) the ability to recognize
the anticipated benefits of the Merger, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, continue developing its properties, maintain relationships with customers and
suppliers, and retain its management and key employees; (8) costs related to the Merger and the reorganization described in the A&R BCA; (9) changes in applicable laws or regulations; (10) the possibility that the Company and/or its related
entities may be adversely affected by other economic, business, and/or competitive factors; (11) the impact of the COVID-19 pandemic on the Company’s business and/or the ability of the parties to complete the Merger; and (12) other risks and
uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in HCM’s prospectus dated January 24, 2022 and filed with the SEC on January 24, 2022 and HCM’s other filings with the SEC, as
well as any further risks and uncertainties to be contained in the proxy statement/prospectus filed after the date hereof. In addition, there may be additional risks that neither HCM or the Company presently know, or that HCM or the Company currently
believe are immaterial, that could also cause actual results to differ from those contained in the forward-looking statements. Nothing in this communication should be regarded as a representation by any person that the forward-looking statements set
forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Except as may
be required by law, neither HCM nor the Company undertakes any duty to update these forward-looking statements.
No Offer or Solicitation
This Current Report on Form 8-K is not a proxy statement or solicitation of a proxy, consent, or authorization with respect to any
securities or in respect of the potential transaction and shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of any securities in any state or jurisdiction in which such offer,
solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction.
Item 9.01.
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Financial Statements and Exhibits.
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Exhibit
Number
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Description
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Amended and Restated Business Combination Agreement, dated August 2, 2023, by and among HCM Acquisition Corp, MURANO PV, S.A. DE C.V., Elías Sacal
Cababie, ES Agrupación, S.A. de C.V., Murano Global B.V., MPV Investment B.V., and Murano Global Cayman
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Sponsor Support Agreement, dated August 2, 2023, by and among HCM Investor Holdings, LLC, the other holders of HCM Class B Ordinary Shares, and
Murano PV, S.A. de C.V.
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104
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Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)
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†
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Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to
furnish a copy of all omitted exhibits and schedules to the SEC upon its request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
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HCM ACQUISITION CORP
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By:
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/s/ James Bond
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Name:
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James Bond
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Title:
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Chief Financial Officer
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Date: August 7, 2023
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SPONSOR SUPPORT AGREEMENT
This SPONSOR SUPPORT AGREEMENT (this “Agreement”), dated as of
August 2, 2023, is entered into by and between HCM Investor Holdings, LLC, a Delaware limited liability company (the “Sponsor”), the holders of HCM Class B
Ordinary Shares set forth on Schedule I hereto (the “Class B Holders”
and, together with the Sponsor, collectively, the “Sponsor Parties”) and Murano PV, S.A. de C.V., a Mexican corporation (the “Company”).
RECITALS
WHEREAS, concurrently herewith, HCM Acquisition
Corp., a Cayman Islands exempted company incorporated with limited liability (“HCM”), the Company, Elías Sacal Cababie, an individual, ES Agrupación, S.A. de
C.V., a Mexican corporation, Murano Global Investments Limited, a company incorporated under the laws of the Bailiwick of Jersey (“PubCo”), Murano Global B.V.,
a Dutch Corporation, MPV Investments B.V., a private limited liability company under Dutch law, and Murano Global Cayman, a Cayman Islands exempted company incorporated with limited liability which is a direct wholly-owned subsidiary of PubCo (“New CayCo”), are entering into an Amended and Restated Business Combination Agreement (as amended, supplemented, restated or otherwise modified from time to time,
the “Business Combination Agreement”), pursuant to which (among other things and subject to the terms and conditions set forth therein), New CayCo will merge
with and into HCM (the “Merger”), with HCM surviving the Merger as a direct wholly owned subsidiary of PubCo;
WHEREAS, capitalized terms used but not otherwise
defined in this Agreement shall have the meanings ascribed to them in the Business Combination Agreement;
WHEREAS, on April 19, 2023, the Sponsor converted
all of its 9,987,500 HCM Class B Ordinary Shares into a like amount of Class A Ordinary Shares in accordance with the terms of the amended and restated articles of association of HCM;
WHEREAS, the Sponsor is currently the record owner
of 9,987,500 HCM Class A Ordinary Shares (the “Sponsor Shares”) and 10,500,000 HCM Private Placement Warrants (the “Sponsor Warrants”);
WHEREAS, as of the date hereof, each Class B Holder
beneficially owns (as such term is defined in Rule 13d-3 under the Exchange Act), and has sole voting power with respect to the number and type of HCM Class B Ordinary Shares (collectively with the Sponsor Shares, the “Sponsor Party Shares”) and owns the HCM Ordinary Warrants (collectively with the Sponsor Warrants, the “Sponsor
Party Warrants”) indicated opposite such Class B Holder’s name on Schedule I attached hereto; and
WHEREAS, as a condition and inducement to the
willingness of the Company to enter into the Business Combination Agreement, the Company and the Sponsor Parties are entering into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing
and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, each Sponsor Party and the Company hereby
agree as follows:
1. Voting Agreement. Each Sponsor Party
agrees that, at the HCM Shareholders’ Meeting, at any other meeting of HCM Shareholders (whether annual or extraordinary and whether or not an adjourned or postponed meeting, however called and including any adjournment or postponement thereof) and
in connection with any written consent of the HCM Shareholders, each Sponsor Party shall:
a. when such meeting is held, appear at such meeting or otherwise cause the Sponsor Party Shares to be counted as present thereat for
the purpose of establishing a quorum;
b. vote (or execute and return an action by written consent), or cause to be voted at such meeting (or validly execute and return and
cause such consent to be granted with respect to), all of the Sponsor Party Shares in favor of (i) the approval and adoption of the Business Combination Agreement and approval of the Merger and all other transactions contemplated by the Business
Combination Agreement and (ii) against any action, agreement or transaction or proposal that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of HCM under the Business Combination Agreement or
that would reasonably be expected to result in the failure of the Merger from being consummated and (iii) each of the proposals and any other matters necessary or reasonably requested by HCM for consummation of the Merger and the other transactions
contemplated by the Business Combination Agreement; and
c. vote (or execute and return an action by written consent), or cause to be voted at such meeting (or validly execute and return and
cause such consent to be granted with respect to), all of the Sponsor Party Shares against any action that would reasonably be expected to (i) materially impede, interfere with, delay, postpone or adversely affect the Merger or any of the other
transactions contemplated by the Business Combination Agreement, or (ii) result in a breach of any covenant, representation or warranty or other obligation or agreement of any of the Sponsor Parties contained in this Agreement.
2. Transfer of Shares. Except as otherwise
contemplated by the Business Combination Agreement or this Agreement, each Sponsor Party agrees that it shall not (a) sell, assign, transfer (including by operation of law), create any lien or pledge, dispose of or otherwise encumber any of the
Sponsor Party Shares or Sponsor Party Warrants or otherwise agree to do any of the foregoing, (b) deposit any Sponsor Party Shares or Sponsor Party Warrants into a voting trust or enter into a voting agreement or arrangement or grant any proxy or
power of attorney with respect thereto that is inconsistent with this Agreement or with the Business Combination Agreement or (c) enter into any contract, option or other arrangement or undertaking requiring the direct acquisition or sale,
assignment, transfer or other disposition of any Sponsor Party Shares or Sponsor Party Warrants.
3. Forfeiture. In connection with the
consummation of the transactions contemplated by the Business Combination Agreement, the Sponsor hereby agrees that immediately prior to the Effective Time, the Sponsor shall forfeit and surrender, and/or cause the forfeiture and surrender, to HCM,
for no consideration, of 1,250,000 HCM Class A Ordinary Shares and all of the Sponsor Warrants (collectively, the “Forfeited Interests”). The Sponsor hereby
agrees to (i) take, and authorizes HCM to take, such actions as shall be necessary to evidence such surrender and forfeiture of such Forfeited Interests as of immediately prior to the Effective Time and (ii) provide the Company with documentation
reasonably satisfactory to the Company evidencing the satisfaction of the Sponsor’s obligation to surrender and forfeit such Forfeited Interests prior to the Effective Time.
4. Sponsor BCA Commitments. The Sponsor
acknowledges the provisions of Section 7.6 and Section 8.7(c) of the Business Combination Agreement and hereby covenants and agrees to perform its obligations contained therein.
5. Representations and Warranties of the Sponsor
Parties. Each Sponsor Party hereby represents and warrants to the Company as follows:
a. Each Sponsor Party is the only record holder and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and
has good, valid and marketable title to, the Sponsor Party Shares and the Sponsor Party Warrants, free and clear of Liens other than as created by this Agreement or Sponsor’s organizational documents or the organizational documents of HCM.
b. Each Sponsor Party (i) has, to the extent applicable, full voting power, full power of disposition and full power to issue
instructions with respect to the matters set forth herein, in each case, with respect to the Sponsor Party Shares and the Sponsor Party Warrants, (ii) has not entered into any voting agreement or voting trust with respect to any of the Sponsor Party
Shares that is inconsistent with the Sponsor Party’s obligations pursuant to this Agreement (including, without limitation, the Sponsor’s obligations set forth in Section 4 hereof and in Section 7.6 and Section 8.7(c) of the Business Combination
Agreement), (iii) has not granted a proxy or power of attorney with respect to any of the Sponsor Party Shares that is inconsistent with the Sponsor Party’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or
undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement (including, without limitation, the Sponsor’s obligations set forth in Section 4 hereof
and in Section 7.6 and Section 8.7(c) of the Business Combination Agreement).
c. The Sponsor (i) is a legal entity duly organized, validly existing and in good standing under the Laws of Delaware and (ii) has all
requisite limited liability company or other power and authority and has taken all limited liability company or other action necessary in order to execute, deliver and perform its obligations under this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the Sponsor and constitutes a valid and binding agreement of the Sponsor enforceable against the Sponsor in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
d. Each Class B Holder, to the extent such Class B Holder is not an individual, is duly organized, validly existing and in good standing
under the Laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within such Class B
Holder’s corporate, limited liability company or organizational powers and have been duly authorized by all necessary corporate, limited liability company or organizational actions on the part of such Class B Holder. This Agreement has been duly
executed and delivered by each Class B Holder and, assuming due authorization, execution and delivery by the other parties to this Agreement, this Agreement constitutes a legally valid and binding obligation of each Class B Holder, enforceable
against each Class B Holder in accordance with the terms hereof. The Person signing this Agreement on behalf of any Class B Holder has full power and authority as representative or fiduciary to enter into this Agreement on behalf of the applicable
Class B Holder.
e. None of the execution or delivery by a Sponsor Party of this Agreement nor any Ancillary Agreement to which it is or will be a party,
the performance by a Sponsor Party of its obligations hereunder or thereunder nor the consummation by the Sponsor of the Business Combination will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation
or breach of any provision of the Governing Documents of HCM, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancellation, amendment, modification, suspension, revocation or
acceleration (with or without notice) under, any of the terms, conditions or provisions of any material Contract to which a Sponsor Party is a party, (iii) violate, or constitute a breach under, any Governmental Order or applicable Law to which any
Sponsor Party or any of its properties or assets are subject or bound or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) of a Sponsor Party, except in the case of any of clauses (ii)
through (iv) above, as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect.
f. As of the date of this Agreement, there is no Legal Proceeding pending, or to the knowledge of the Sponsor, threatened against the
Sponsor that questions the beneficial or record ownership of the Sponsor Party Shares or the Sponsor Party Warrants, the validity of this Agreement or the performance by each Sponsor Party of its obligations under this Agreement (including, without
limitation, the Sponsor’s obligations set forth in Section 4 hereof and in Section 7.6 and Section 8.7(c) of the Business Combination Agreement).
g. Each Sponsor Party understands and acknowledges that the Company is entering into the Business Combination Agreement in reliance upon
each Sponsor Party’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Sponsor Parties contained herein.
6. Further Assurances. From time to time, at
either HCM’s or the Company’s request and without further consideration, the Sponsor Parties shall execute and deliver such additional documents and take all such further action as may be reasonably necessary or reasonably requested to effect the
actions and consummate the transactions contemplated by this Agreement.
7. Changes in Capital Stock. In the event of
a stock split, stock dividend or distribution, or any change in HCM’s capital stock by reason of any stock split, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, equitable adjustment shall be made
to the provisions of this Agreement as may be required so that the intended rights, privileges, duties and obligations hereunder shall be given full effect (including, for the avoidance of doubt, with respect to the transactions contemplated by
Section 3 hereof).
8. Amendment and Modification. This
Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed by the Sponsor Parties and the Company.
9. Waiver. No failure or delay by any party
hereto exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies of the parties hereto hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder. Any agreement on the part of a party hereto to any such waiver shall be valid only if set
forth in a written instrument executed and delivered by such party.
10. Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) by delivery in person, by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of
the sender that the e-mail was sent to the intended recipient thereof without an “error” or similar message that such e-mail was not received by such intended recipient)), or by registered or certified mail (postage prepaid, return receipt requested)
(upon receipt thereof) to the other parties as follows:
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if to the Sponsor, to it at: |
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HCM Investor Holdings, LLC
c/o HCM Acquisition Corp.
100 First Stamford Place
Suite 330
Stamford, CT 06902
Attention: Shawn Matthews, Chairman and Chief Executive Officer
Email: smatthews@hondiuscapital.com
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with a copy to:
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King & Spalding LLP
1185 Avenue of the Americas, 34th Floor
New York, NY 10036
Attention: Tim FitzSimons; Kevin E. Manz
Email: tfitzsimons@kslaw.com; kmanz@kslaw.com
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if to the Company, to it at: |
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Murano PV, S.A. de C.V.
Av. Paseo de las Palmas 1270,Col. Lomas de Chapultepec,
11000, Mexico City, Mexico
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Attention: |
Elías Sacal Cababie, Marcos Sacal Cohen
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Email: |
elias@murano.com.mx; marcos@murano.com.mx |
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with copies to each of (which shall not constitute notice): |
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Nader, Hayaux & Goebel
Paseo de los Tamarindos No. 400-B, 7th Floor
Bosque de las Lomas, 05120 CDMX, Mexico
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Attention: |
Michell Nader Schekaibán
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Julián J. Garza Castañeda |
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Email: mnader@nhg.com.mx
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jgarza@nhg.com.mx |
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and |
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Clifford Chance US LLP
31 West 52nd Street
New York, New York 10019
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Attention: |
Hugo F. Triaca |
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Email: |
hugo.triaca@cliffordchance.com |
11. Entire Agreement. This Agreement
constitutes the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof.
12. No Third-Party Beneficiaries. Each
Sponsor Party hereby agrees that its representations, warranties and covenants set forth herein are solely for the benefit of the Company in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does
not, confer upon any person other than the parties hereto any rights or remedies hereunder, including, without limitation, the right to rely upon the representations and warranties set forth herein, and the parties hereto hereby further agree that
this Agreement may only be enforced against, and any action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against, the persons expressly named as
parties hereto.
13. Governing Law and Venue. This Agreement,
and all claims or causes of action based upon, arising out of or related to this Agreement, shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.
14. Waiver of Jury Trial. THE PARTIES EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES EACH HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 14.
15. Assignment; Successors. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either of the parties hereto in whole or in part (whether by operation of Law or otherwise) without the prior written consent of the other party, and any such
assignment without such consent shall be null and void. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.
16. Specific Performance. Each party agrees
that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties do not perform their respective obligations under the provisions of this Agreement in accordance with
their specific terms or otherwise breach such provisions. It is accordingly agreed that each party shall be entitled to seek an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each of
the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at
law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
17. Severability. Whenever possible, each
provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other
provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
18. Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by e-mail, or scanned pages shall be
effective as delivery of a manually executed counterpart to this Agreement.
19. Termination. This Agreement shall
terminate upon the earliest of (a) the Closing of the Merger, (b) the termination of the Business Combination Agreement pursuant to and in accordance with its terms, and (c) the time this Agreement is terminated upon the mutual written agreement of
the Company and the Sponsor; provided however, that if there is a “Modification in Recommendation” pursuant to Section 8.2(b) of the Business Combination Agreement, Sponsor’s obligations under this Agreement shall terminate.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized
persons thereunto duly authorized) as of the date first written above.
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SPONSOR:
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HCM INVESTOR HOLDINGS, LLC
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/s/ James Bond
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By: James Bond
Title: President
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[Signature Page to Sponsor Support Agreement]
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CLASS B HOLDERS:
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/s/ Jacob Loveless
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JACOB LOVELESS |
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/s/ Steven Bischoff
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STEVEN BISCHOFF |
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/s/ David Goldfarb
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DAVID GOLDFARB |
[Signature Page to Sponsor Support Agreement]
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THE COMPANY:
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MURANO PV, S.A. DE C.V.
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/s/ Elías Sacal Cababié
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By: Elías Sacal Cababié
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[Signature Page to Sponsor Support Agreement]
Name
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HCM Class B Ordinary Shares
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HCM Ordinary Warrants
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Jacob Loveless
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25,000
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0
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Steven Bischoff
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25,000
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0
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David Goldfarb
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25,000
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0
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