UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
June 4, 2024 (May 29, 2024)
Mars Acquisition Corp.
(Exact name of registrant as specified in its charter)
| Cayman Islands |
|
001-41619 |
|
N/A |
|
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification No.) |
|
Americas Tower, 1177 Avenue of The
Americas, Suite 5100
New York, NY |
|
10036 |
| (Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (888)-667-6277
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 to the registrant under any of the following provisions:
| x |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
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:
| Title of each class |
|
Trading
Symbol(s) |
|
Name of each exchange on which registered |
| Units, each consisting of one ordinary share, par value $0.000125, and one right entitling the holder to receive 2/10 of an ordinary share |
|
MARXU |
|
The Nasdaq Stock Market LLC |
| Ordinary Shares, $0.000125 par value |
|
MARX |
|
The Nasdaq Stock Market LLC |
| Rights to receive two-tenths (2/10) of one ordinary share |
|
MARXR |
|
The Nasdaq Stock Market LLC |
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 x
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 |
Entry into a Material Definitive Agreement. |
Subscription Agreement
The information set forth
in Section 3.02 of this Current Report on Form 8-K is incorporated herein by reference in its entirety.
| Item 3.02 |
Unregistered Sales of Equity Securities. |
On May 29, 2024, Mars Acquisition
Corp. (“Mars”) entered into a definitive subscription agreement (the “Subscription Agreement”)
with Polar Multi-Strategy Master Fund (the “Investor”), Mars Capital Holdings Corporation (the “Sponsor”),
and ScanTech for Investor to provide ScanTech up to $250,000 in funding for working capital expenses in connection with the Business
Combination in exchange for the Subscription Shares (as defined below).
Pursuant to the Subscription
Agreement, upon a drawdown request for working capital for a total of $250,000, Investor shall provide funding within five (5) calendar
days. In connection therewith, Pubco shall issue to Investor one share of Pubco Common Stock for each dollar the Investor provided as
of the Closing without transfer restrictions (“Subscription Shares”).
The foregoing summary of
the Subscription Agreement does not purport to be complete and is qualified in its entirety by the full text of the Subscription Agreement
attached hereto as Exhibits 10.1 and is incorporated herein by reference.
| Item 7.01. |
Regulation FD Disclosure. |
The information in this Item
7.01 is furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to
liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of Mars or Pubco under the Securities
Act or the Exchange Act, regardless of any general incorporation language in such filings. For the avoidance of doubt, Mars intends for
this Form 8-K to satisfy the requirements of Rule 165(a) and Rule 425(a) under the Securities Act. This Current Report on Form 8-K will
not be deemed an admission as to the materiality of any information of the information in this Item 7.01.
Important Additional Information About the
Business Combination and Where to Find It
In connection with the proposed
Business Combination, Pubco intends to file a registration statement on Form S-4 with the SEC, which will include a preliminary prospectus
with respect to its securities to be issued in connection with the Business Combination and a preliminary proxy statement with respect
to the extraordinary general meeting at which Mars’ shareholders will be asked to vote on the proposed Business Combination. Each
of Mars, Pubco and ScanTech urge investors, shareholders or members, and other interested persons to read, when available, the Form S-4,
including the proxy statement/prospectus, any amendments thereto, and any other documents filed with the SEC, before making any voting
or investment decision because these documents will contain important information about the proposed Business Combination. After the
Form S-4 has been filed and declared effective, Mars will mail the definitive proxy statement/prospectus to shareholders of Mars as of
a record date to be established for voting on the Business Combination. Mars’ shareholders will also be able to obtain a copy of
such documents, without charge, by directing a request to: Mars Acquisition Corp., Americas Tower, 1177 Avenue of The Americas, Suite
5100, New York, New York, 10036. These documents, once available, can also be obtained, without charge, at the SEC’s website www.sec.gov.
INVESTMENT IN ANY SECURITIES
DESCRIBED HEREIN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SEC, THE ISRAELI SECURITIES AUTHORITY, OR ANY OTHER REGULATORY AUTHORITY,
NOR HAS ANY SECURITIES AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE PROPOSED TRANSACTIONS PURSUANT TO WHICH ANY SECURITIES ARE
TO BE OFFERED OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Participants in Solicitation
Mars and ScanTech and their
respective directors, executive officers and other persons may be deemed to be participants in the solicitation of proxies from Mars’
shareholders with respect to the proposed transaction. Information about the directors and executive officers of Mars is set forth in
its final prospectus, dated as of February 13, 2023, and filed with the SEC on February 14, 2023, and is available free of
charge at the SEC’s website at www.sec.gov or by directing a request to: Mars Acquisition Corp., Americas Tower, 1177 Avenue of
The Americas, Suite 5100, New York, New York 10036. Information regarding the persons who may, under SEC rules, be deemed participants
in the solicitation of Mars shareholders in connection with the proposed transaction will be set forth in Mars’ and Pubco’s
filings with the SEC, including the proxy statement/prospectus and other relevant materials filed with the SEC in connection with the
Business Combination when they become available.
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 does not constitute an offer to sell or a solicitation of an offer to buy any securities of Mars, ScanTech or Pubco,
nor shall there be any sale of any such 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. No offer of securities shall be made
except by means of a prospectus meeting the requirements of the Securities Act.
Forward-Looking Statements
Certain statements in this
Current Report on Form 8-K may be considered “forward-looking statements” within the meaning of the Private Securities
Litigation Reform Act of 1995 and are based on beliefs and assumptions and on information currently available to Mars and ScanTech. In
some cases, you can identify forward-looking statements by the following words: "may," "will," "could,"
"would," "should," "expect," "intend," "plan," "anticipate," "believe,"
"estimate," "predict," "project," "potential," "continue," "ongoing," "target,"
"seek" or the negative or plural of these words, or other similar expressions that are predictions or indicate future events
or prospects, although not all forward-looking statements contain these words.
Any statements that refer
to expectations, projections or other characterizations of future events or circumstances, including, without limitation, projections
of market opportunity and market share; ScanTech’s or Pubco’s business plans, including any plans to expand; the sources
and uses of cash from the proposed transaction; the anticipated enterprise value of the combined company following the consummation of
the proposed transaction; any benefits of ScanTech’s partnerships, strategies or plans; anticipated benefits of the proposed transaction;
and expectations related to the terms and timing of the proposed transaction are also forward-looking statements. In addition, in order
to be able to execute on its business plan, ScanTech will be required to repay a significant amount of its current liabilities. These
statements involve risks, uncertainties and other factors that may cause actual results, levels of activity, performance or achievements
to be materially different from those expressed or implied by these forward-looking statements.
These statements are based
on a combination of facts and factors currently known and projections of the future, which are inherently uncertain. Neither Mars nor
ScanTech can assure you that the forward-looking statements in this communication will prove to be accurate. These forward-looking statements
are subject to a number of risks and uncertainties, including, among others: (i) the inability of the parties to complete the business
combination due to, among other things, (a) the failure to obtain required approvals from Mars’ shareholders, ScanTech’s
members, or any third parties whose approval is required; (b) the failure to timely obtain consent or approvals to the business combination
from any governmental agencies or entities whose consent or approval is required (including, without limitation, the Transportation Security
Administration (“TSA”), and any required consents or clearances by The Committee on Foreign Investment in the United States
(“CFIUS”); (c) ScanTech’s inability to complete its pre-closing recapitalization (including the conversion of approximately
$70 million of existing indebtedness into equity of ScanTech of which approximately $60 million is held by insiders, and other third
parties, who have indicated their intention to participate in the conversion); or (d) the inability or failure of Mars or ScanTech to
satisfy any of the other closing conditions in the Business Combination Agreement; (ii) the occurrence of any event that could give rise
to the termination of the Business Combination Agreement; (iii) the inability of the parties to recognize the anticipated benefits of
the Business Combination; (iv) the amount of redemption requests made by Mars’ public shareholders and the risk that all or substantially
all of Mars’ shareholders will elect to redeem their shares in connection with the transaction; (v) costs and expenses related
to the transaction, including the risk that the costs and expenses will exceed current estimates; (vi) the inability of Pubco to continue
as a going concern; (vii) the risk that the transaction disrupts current plans and operations of ScanTech as a result of the announcement
and consummation of the transaction; (viii) potential claims against ScanTech from vendors and other third parties as a result of prior
agreements or other obligations of ScanTech or its affiliates; (ix) the inability of Mars prior to the transaction, and the Pubco following
completion of the transaction, to satisfy and maintain (in the case of the Mars) and to obtain and maintain (in the case of Pubco) the
listing of their respective shares on Nasdaq; (x) the outcome of any existing or potential litigation, government or regulatory proceedings;
(xi) the inability of the parties to obtain a transaction financing; (xii) the possibility that Mars, ScanTech, or Pubco may be adversely
affected by other economic, business and/or competitive factors; (xiii) the inability of ScanTech to manufacture, or arrange the manufacturing,
of products that may be ordered by customers; (xiv) the inability of ScanTech to retain and increase sales to existing customers, attract
new customers and satisfy customers’ requirements; (xv) competition from larger companies that have greater resources, technology,
relationships and/or expertise; (xvi) the future financial performance of the combined company following the transaction and its ability
to achieve profitability in the future; (xvii) the inability of ScanTech to satisfy past and future payroll and other obligations and
liabilities; (xviii) ScanTech’s significant obligations to the Internal Revenue Service in connection with unpaid federal payroll
taxes; (xix) the fact that ScanTech is technically insolvent and may not have sufficient funds to execute on its business plan or continue
its operations, the inability of ScanTech or risk that the combined company will become solvent and continue operations following completion
of the transaction; (xx) the inability of ScanTech and Pubco to complete successful testing of their products; (xxi) the inability of
ScanTech’s products to be approved for placement on the qualified products list of the CheckPoint Property Screening System (CPSS)
program of the TSA (and, if approved, to be granted funds from the CPSS program), and to obtain or maintain any required third-party
certificates; (xxii) the risk that ScanTech’s patents will expire or not be renewed; (xxiii) the fact that ScanTech’s assets,
including its intellectual property, are subject to security interests of creditors, and the loss of such assets, particularly intellectual
property, would preclude ScanTech from conducting its business; and (xxiii) those other risks and uncertainties set forth in documents
of Mars or Pubco filed, or to be filed, with the SEC.
These statements involve
risks, uncertainties and other factors that may cause actual results, levels of activity, performance or achievements to be materially
different from those expressed or implied by these forward-looking statements. These statements are based on a combination of facts and
factors currently known and projections of the future, which are inherently uncertain. Neither Mars, ScanTech nor Pubco can assure you
that the forward-looking statements in this Current Report on Form 8-K will prove to be accurate.
In light of the significant
uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty by Mars, ScanTech,
or Pubco or their respective directors, officers or employees or any other person that Mars, ScanTech or Pubco will achieve their objectives
and plans in any specified time frame, or at all. The forward-looking statements in this Current Report on Form 8-K represent the views
of Mars and ScanTech as of the date of this communication. Subsequent events and developments may cause those views to change. Neither
Mars, ScanTech nor Pubco undertakes any obligation to update or revise the forward-looking statements, whether as a result of new information,
future events or otherwise.
| Item 9.01. |
Financial Statements and Exhibits. |
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.
| Date: June 4, 2024 |
Mars Acquisition Corp. |
| |
|
| |
By: |
/s/ Karl Brenza |
| |
Name: |
Karl Brenza |
| |
Title: |
Chief Executive Officer |
Exhibit 10.1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION
AGREEMENT (this “Agreement”) is made and entered into effectively as of May 29, 2024 (the “Effective
Date”), by, between and among Polar Multi-Strategy Master Fund (the “Investor”), Mars Acquisition Corp.,
a Cayman Islands exempted company (“SPAC”), Mars Capital Holdings Corporation, a British Virgin Islands business company
(“Sponsor”), and Scantech Identification Beam Systems, LLC, a Delaware limited liability company (“Scantech”).
Investor, SPAC, Sponsor and Scantech are referred to in this Agreement individually as a “Party” and collectively as
the “Parties.”
WHEREAS, SPAC is
a special purpose acquisition company that closed on its initial public offering on February 16, 2023, with 12 months to complete
an initial business combination (the “De- SPAC” and the closing of the De-SPAC transaction being referred to hereinafter
as the “De-SPAC Closing);
WHEREAS, on January 30,
2024, SPAC held a special meeting of stockholders during which SPAC’s stockholders approved a proposal to extend the date by which
the SPAC must consummate the De- SPAC from February 16, 2024 to November 16, 2024; (the “Extension”);
WHEREAS, on September 5,
2023, SPAC entered a business combination agreement with Scantech (the “Business Combination Agreement”). The transactions
contemplated by the Business Combination Agreement are hereinafter referred to collectively as the “Business Combination”;
WHEREAS, as of
the date of this Agreement, SPAC has not completed the De-SPAC;
WHEREAS, Sponsor
raised $1,000,000 from Investor pursuant to a Subscription Agreement dated April 2, 2024 (“Initial Subscription Agreement”).
For the avoidance of doubt, any amounts or share amounts stated in the Initial Subscription Agreement will be separate and distinct from
any of the amounts or share amounts stated in this Agreement.
WHEREAS, pursuant
to the terms and conditions of this Agreement, Investor has agreed to fund an amount up to $250,000 to SPAC to be used for expenses
in connection with the Business Combination (the “Capital Contribution”) in return for the Subscription Shares (as
defined below); and
NOW, THEREFORE,
in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations,
warranties, covenants and agreement contained in this Agreement, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I
SUBSCRIPTION AND RETURN OF CAPITAL
| 1.1 | Capital Contribution. The
Capital Contribution shall be paid by the Investor by wire transfer of immediately available funds to SPAC to be used for expenses in
connection with the Business Combination pursuant to the wiring instructions separately provided within five (5) business days of
this Agreement or on such date as the Parties may agree in writing (such date, the “Closing”); provided that, Investor
has received sufficient evidence to its satisfaction that, prior to the disbursement of any amounts, Sponsor has all requisite approval
from Seaport and any other lender for the Sponsor Note (as defined below) to be issued in accordance with section 2.1.1. For greater certainty,
SPAC has the right but no obligation to request the full amount of the Capital Contribution in its sole discretion, and no amount may
be requested after the termination or expiry of this Agreement. |
| 1.2 | Subscription. In consideration of the Capital Contribution funded by the Investor and received
by the SPAC (such funded amounts, being the Investor’s “Capital Investment”) SPAC (or the surviving entity following
the De-SPAC Closing) will issue 1 share of the surviving entity’s common stock (“Common Stock”) for each dollar
of the Capital Investment that has been funded as of or prior to the De-SPAC Closing (“Subscription Shares”). Such
issuance will be completed no later than two (2) business days following the De-SPAC Closing. |
| 1.3 | Undertaking. In
consideration of the Capital Investment being made to the SPAC, each of Scantech and SPAC hereby undertakes and agrees that it shall not
(a) reduce the Reference Price (as defined in the Prepaid Forward Purchase Agreement by and among SPAC, Scantech, and RiverNorth
SPAC Arbitrage Fund L.P. dated September 4, 2023 (“FPA”)) below $7.00 until the later of (x) six months after
the De-SPAC closing and (y) four months after the registration statement for the shares is effective; and (b) exercise any rights
pursuant to Section 4(c) of the FPA. |
| 1.4 | Restrictions.
The Subscription Shares shall not be subject to any transfer restrictions or any other lock-up provisions, earn outs, or other contingencies.
For purposes of clarity, following the De-SPAC Closing, the Subscription Shares will not be subject to forfeiture or lockup and, notwithstanding
anything contained in any agreement to which the Investor Shares (as defined below) is or are subject, Investor shall not be required
to forfeit or transfer the Investor Shares. |
| 1.5 | Registration.
The Sponsor and SPAC shall ensure that the Investor Shares (i) to the extent feasible and in compliance with all applicable laws
and regulations are registered as part of any registration statement issuing shares before or in connection with the De-SPAC Closing,
or (ii) if no such registration statement is filed in connection with the De-SPAC Closing, are promptly registered pursuant to the
first registration statement filed by the SPAC or the surviving entity following the De-SPAC Closing, which shall be filed no later than
30 days after the De-SPAC Closing and declared effective no later than 120 days after the De-SPAC Closing (the “Registration
Requirement”). The Sponsor shall not sell, transfer, or otherwise dispose of any SPAC securities owned by the Sponsor until
the Capital Investment has been repaid to the Investor as a return of capital, the Investor Shares have been issued to the Investor, and
the Registration Requirement has been complied with. |
| 1.6 | Return of Capital. Upon the De-SPAC Closing, the SPAC (or surviving entity following De-SPAC closing)
will pay to the Investor an amount equal to the Capital Investment as a return of capital within 5 business days of the De-SPAC Closing.
Scantech, the SPAC and Sponsor shall be jointly and severally obligated for such payment. SPAC shall provide a final draft of the flow
of funds one business day prior to the De-SPAC Closing itemizing the return of capital due to the Investor, and Investor shall be invited
and permitted to attend any closing call held in connection with the De-SPAC Closing. The Investor may elect at the De-SPAC Closing to
receive the repayment of its Capital Investment in cash or shares of Common Stock. If the Investor elects to receive such repayment in
shares, then SPAC (or the surviving entity following the De-SPAC Closing) will issue to the Investor, shares of the SPAC's Common Stock
at a rate of 1 share of Common Stock for each $10 of the Investor’s Capital Investment hereunder. If the SPAC liquidates without
consummating a De-SPAC, any amounts remaining in the Sponsor or SPAC’s cash accounts, not including the SPAC’s trust account,
following such time as all wind-down expenses have been repaid(including any expenses incurred by third-party service providers involved
in the de-SPAC transaction who are entitled to such liquidation and wind-up, as well as settlements with any outstanding vendors but excluding
any amounts that may be owed to Scantech), will be paid to the Investor within five (5) days of the liquidation, up to the amount
of the Capital Investment in full satisfaction of any amounts due hereunder. For the avoidance of doubt, third-party service providers
involved in the de-SPAC transaction shall hold priority over Investors with respect to distribution rights upon liquidation and dividend
rights. Each of Scantech, Sponsor and SPAC hereby agrees that any funds which Scantech and/or its affiliates provides or loans to SPAC
and/or Sponsor in connection with the SPAC’s liquidation or wind-up shall be used first to pay the Investor’s return of capital
before being used to cover any such liquidation or wind-up expenses. |
| 1.7 | Default. In the event that any of Sponsor, Scantech or SPAC defaults in its obligations under any
of Sections 1.2, 1.3, 1.4, 1.5 or 1.6 of this Agreement and in the event that such default continues for a period of five (5) business
days following written notice to the Sponsor, Scantech and/or SPAC (as applicable) (the “Default Date”), SPAC (or the
surviving entity following the De-SPAC Closing) shall promptly issue to Investor: |
| (a) | on the Default Date, a 0.1 share of SPAC’s (or the surviving entity following the De-SPAC Closing)
Common Stock for each dollar of the Investor’s Capital Investment that had been funded as of the Default Date (the “Default
Shares” and together with the Subscription Shares, the “Investor Shares”); and |
| (b) | thereafter, on each monthly anniversary of the Default Date until the default is cured - an additional
0.1 Default Share for each dollar of the Investor’s Capital Investment that had been funded as of the Default Date; |
provided, in each case, that in no
event will SPAC (or the surviving entity following the De-SPAC Closing) issue, any Default Shares to Investor that would result in Investor
(together with any other persons whose beneficial ownership of SPAC’s Common Stock would be aggregated with Investor’s for
purposes of Section 13(d) or Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and the applicable regulations of the Securities and Exchange Commission, including any “group” of which Investor is a member)
beneficially owning more than 19.9% of the outstanding shares of SPAC Common Stock (“Ownership Limit”); provided further
than any Default Shares that were not issued to Investor because the issuance of such shares would have exceeded the Ownership Limit shall
be promptly issued to Investor upon written request from Investor to extent that, at the time of such request, such issuance would no
longer exceed the Ownership Limit. Any such Default Shares received pursuant to this Section 1.6 shall be subject to the Registration
Requirement if a registration statement covering such shares is not effective at the time the Default Shares are transferred to Investor,
and if a registration statement has been declared effective, such Default Shares shall be promptly registered, and in any event will be
registered within 30 days. In the event that Investor notifies Sponsor and SPAC of any default pursuant to this Section 1.6, Sponsor
shall not sell, transfer, or otherwise dispose of any SPAC securities owned by the Sponsor, other than in accordance with this Section 1.6,
until such default is cured.
| 1.8 | Reimbursement. On the De-SPAC Closing, the SPAC will pay the Investor an amount equal to the reasonable
attorney fees incurred by the Investor in connection with this Agreement not to exceed $5,000. |
ARTICLE II
BCA TERMINATION
| 2.1 | BCA Termination. In the event that, following the Closing, (i) the Business Combination
Agreement is terminated or (ii) the Business Combination does not close by November 16, 2024 (or such other date as the parties
shall agree) (the “Termination”), Scantech agrees, in consideration of the Capital Investment already made, that within
ten (10) business days of the Termination, |
| 2.1.1 | it will issue, to the Sponsor, a promissory note with a principal amount equal to the Capital Investment
with terms, rights, and obligations that mirror the Seaport Bridge Note (“Sponsor Note”) and Sponsor shall promptly
assign such Sponsor Note to Investor within five (5) business days of its receipt; and |
| 2.1.2 | it will provide Investor with any further approvals required for the issuance of the Sponsor Note and
any subordination agreement necessary to ensure that Investor has all the same rights as Seaport. |
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
Each Party hereby represents and warrants
to each other Party as of the date of this Agreement and on the date of Closing that:
| 3.1 | Authority. Such Party has the power and authority to
execute and deliver this Agreement and to carry out its obligations hereunder. The execution, delivery and performance by the Party of
this Agreement and the consummation of the transfer have been duly authorized by all necessary action on the part of the relevant Party,
and no further approval or authorization is required on the part of such Party. This Agreement will be valid and binding on each Party
and enforceable against such Party in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent transfer or conveyance, moratorium or similar laws affecting the enforcement of creditors rights generally
and general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity. |
| 3.2 | Acknowledgement. Each Party acknowledges and agrees that the Investor Shares have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”) or under any state securities laws and the Investor
represents that, as applicable, it (a) is acquiring the Investor Shares pursuant to an exemption from registration under the Securities
Act with no present intention to distribute them to any person in violation of the Securities Act or any applicable U.S. state securities
laws, (b) will not sell or otherwise dispose of any of the Investor Shares, except in compliance with the registration requirements
or exemption provisions of the Securities Act and any applicable U.S. state securities laws, (c) has such knowledge and experience
in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of the investment
and related economic terms hereunder and of making an informed investment decision, and has conducted a review of the business and affairs
of the SPAC that it considers sufficient and reasonable for purposes of making the investment and subscription, and (d) is an "accredited
investor" (as that term is defined by Rule 501 under the Securities Act). Each Party acknowledges and agrees that this subscription
will not be treated as indebtedness for U.S. tax purposes. |
| 3.3 | Trust Waiver. Investor acknowledges that the SPAC is a blank check company with the powers and
privileges to effect a business combination and that a trust account has been established by the SPAC in connection with its initial public
offering (“Trust Account”). Investor waives any and all right, title and interest, or any claim of any kind it now
has or may have in the future, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account
for any claims in connection with, as a result of, or arising out of this Agreement; provided, however, that nothing in this Section 3.3
shall (a) serve to limit or prohibit Investor’s right to pursue a claim against the SPAC for legal relief against assets outside
the Trust Account, for specific performance or other relief, (b) serve to limit or prohibit any claims that Investor may have in
the future against the SPAC’s assets or funds that are not held in the Trust Account (including any funds that have been released
from the Trust Account and any assets that have been purchased or acquired with any such funds), or (c) be deemed to limit Investor’s
right, title, interest or claim to the Trust Account by virtue of Investor’s record or beneficial ownership of securities of the
SPAC acquired by any means other than pursuant to this Agreement, including but not limited to any redemption right with respect to any
such securities of the SPAC. |
| 3.4 | Restricted Securities. Investor hereby represents, acknowledges and warrants its representation
of, understanding of and confirmation of the following: |
| · | Investor realizes that, unless subject to an effective registration statement, the Investor Shares cannot
readily be sold as they will be restricted securities and therefore the Investor Shares must not be accepted unless Investor has liquid
assets sufficient to assure that Investor can provide for current needs and possible personal contingencies; |
| · | Investor understands that, because SPAC is a former “shell company” as contemplated
under paragraph (i) of Rule 144, regardless of the amount of time that the Investor holds the Investor Shares, sales of the
Investor Shares may only be made under Rule 144 upon the satisfaction of certain conditions, including that SPAC is no longer a ‘shell
company’ and that SPAC has not been a ‘shell company’ for at least the last 12 months—i.e., that no sales of Investor
Shares can be made pursuant to Rule 144 until at least 12 months after the De-SPAC; and SPAC has filed with the United States Securities
and Exchange Commission, during the 12 months preceding the sale, all quarterly and annual reports required under the Exchange Act; |
| · | Investor confirms and represents that it is able (i) to bear the economic risk of an investment in
the Investor Shares, (ii) to hold the Investor Shares for an indefinite period of time, and (iii) to afford a complete loss
of the Investor Shares; and |
| · | Investor understands and agrees that, until the Investor Shares have been registered pursuant to a registration
statement, a legend has been or will be placed on any certificate(s) or other document(s) evidencing the Investor Shares in
substantially the following form: |
“THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES ACT. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS (I) THEY SHALL HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES ACT, OR (II) AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT OF 1933, AS AMENDED, EXISTS..”
The SPAC shall take all steps necessary
in order to remove the legend referenced in the preceding paragraph from the Investor Shares immediately following the earlier of (a) the
effectiveness of a registration statement applicable to the Investor Shares or (b) any other applicable exception to the restrictions
described in the legend occurs.
ARTICLE IV
MISCELLANEOUS
| 4.1 | Severability. In case any one or more of the provisions contained herein shall, for any reason,
be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, and this Agreement shall be construed as if such provision(s) had never been contained herein,
provided that such provision(s) shall be curtailed, limited or eliminated only to the extent necessary to remove the invalidity,
illegality or unenforceability in the jurisdiction where such provisions have been held to be invalid, illegal, or unenforceable. |
| 4.2 | Titles and Headings. The titles and section headings in this Agreement are included strictly for
convenience purposes. |
| 4.3 | No Waiver. It is understood and agreed that no failure or delay in 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 right, power or privilege hereunder. |
| 4.4 | Term of Obligations. The term of this Agreement shall expire (6) months after the De-SPAC
Closing or (ii) 5 business days following the liquidation of SPAC. However, the obligations set forth herein that are intended to
survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement, including for the
avoidance of doubt, the registration obligations set forth in Sections 1.4 and 1.6, the default provision set forth in Section 1.6
and the indemnity obligations set forth in Section 4.13. |
| 4.5 | Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Delaware, without regard to its conflicts of laws rules. Each Party (a) irrevocably submits
to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter
jurisdiction, the Superior Court of the State of Delaware), or, if it has or can acquire jurisdiction, the United States District Court
for the District of Delaware (collectively, the “Courts”), for purposes of any action, suit or other proceeding arising
out of this Agreement; and (b) agrees not to raise any objection at any time to the laying or maintaining of the venue of any such
action, suit or proceeding in any of the Courts, irrevocably waives any claim that such action, suit or other proceeding has been brought
in an inconvenient forum and further irrevocably waives the right to object, with respect to such action, suit or other proceeding, that
such Court does not have any jurisdiction over such Party. Any Party may serve any process required by such Courts by way of notice. |
| 4.6 | WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. |
| 4.7 | Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes
any previous understandings, commitments or agreements, oral or written, with respect to the subject matter hereof. No modification of
this Agreement or waiver of the terms and conditions hereof shall be binding upon either party, unless mutually approved in writing. |
| 4.8 | Counterparts. This Agreement may be executed by “portable document format” (“PDF”)
or other electronic means and in one or more counterparts, with the same effect as if the Parties had signed the same document. Delivery
of a signed counterpart by PDF, email, or other electronic means will constitute valid delivery hereof and shall be binding as originals. |
| 4.9 | Notices. All notices, consents, waivers and other communications hereunder shall be in writing
and shall be deemed to have been duly given when delivered (i) in person, (ii) by electronic means, with affirmative confirmation
of receipt, (iii) one business day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three
(3) business days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case
to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice. |
| |
If to Investor:
POLAR MULTI-STRATEGY MASTER FUND
c/o Mourant Governance Services (Cayman)
Limited
94 Solaris Avenue Camana Bay
PO Box 1348
Grand Cayman KY1-1108 Cayman Islands
With a mandatory copy to:
Polar Asset Management Partners Inc. 16 York Street, Suite 2900
Toronto, ON M5J 0E6
Attention:
Legal Department, Ravi Bhat / Jillian Bruce
E-mail: legal@polaramp.com / rbhat@polaramp.com / jbruce@polaramp.com |
If to SPAC or Sponsor:
Mars Acquisition Corp.
Attention: Karl Brenza, CEO and CFO
E-mail: kbrenza@verizon.net
With a mandatory copy to:
VCL Law LLP
Attention: Fang Liu
E-mail: fliu@vcllegal.com
If to Sponsor:
Mars Capital Holding Corporation
Attention: Iris Zhao, Director
E-mail: zxchenchen@yahoo.com
If to Scantech:
ScanTech Identification Beam Systems, LLC
Attention: Dolan Falconer
E-mail: dfalconer@scantechibs.com |
| 4.10 | Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other Parties, and any assignment without such consent shall be
null and void; provided that no such assignment shall relieve the assigning Party of its obligations hereunder. |
| 4.11 | Third Parties. Nothing contained in this Agreement or in any instrument or document executed by
any Party in connection with the transactions contemplated hereby shall create any rights in or be deemed to have been executed for the
benefit of, any person or entity that is not a Party hereto or thereto or a successor or permitted assign of such a Party. |
| 4.12 | Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions
contemplated hereby are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may
be inadequate and the non-breaching Parties may have not adequate remedy at law, and agree that irreparable damage may occur in the event
that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were
otherwise breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement
and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to
prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled
under this Agreement, at law or in equity. |
| 4.13 | Indemnification. SPAC, Sponsor and Scantech agree to indemnify and hold harmless Investor, its
affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (each such person being
an “Indemnified Party”) from and against any and all losses (but excluding financial losses to an Indemnified Party
relating to the economic terms of this Agreement), claims, damages and liabilities (or actions in respect thereof), joint or several,
incurred by or asserted against such Indemnified Party arising out of, in connection with, or relating to, the execution or delivery of
this Agreement, the performance by the SPAC, Sponsor and Scantech of their respective obligations hereunder, the consummation of the transactions
contemplated hereby or any pending or threatened claim or any action, suit or proceeding against Scantech, the SPAC, its Sponsors, or
the Investor; provided that neither Scantech, SPAC or Sponsor will be liable under the foregoing indemnification provision to the extent
that any loss, claim, damage, liability or expense is found in a non-appealable judgment by a court of competent jurisdiction to have
resulted from Investor’s material breach of this Agreement or from Investor’s willful misconduct, or gross negligence. In
addition (and in addition to any other reimbursement of legal fees contemplated by this Agreement), Scantech and SPAC will reimburse any
Indemnified Party for all reasonable, out-of-pocket, expenses (including reasonable counsel fees and expenses) as they are incurred in
connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit
or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit
or proceeding is initiated or brought by or on behalf of Scantech or SPAC. The provisions of this paragraph shall survive the termination
of this Agreement. For the avoidance of doubt, under no event shall the officers, directors, members or controlling persons of the SPAC
have any personal obligations or liability hereunder. |
[Remainder of page intentionally left blank; signature
page follows]
The Parties have caused this Agreement
to be duly executed and delivered, all as of the date first set forth above.
| |
SPAC: |
| |
MARS ACQUISITION CORP. |
| |
|
| |
By: |
/s/ Karl Brenza |
| |
Name: Karl Brenza |
| |
Title: CEO and CFO |
| |
|
| |
SPONSOR: |
| |
MARS CAPITAL HOLDINGS CORPORATION |
| |
|
| |
By: |
/s/ Iris Zhao |
| |
Name: Iris Zhao |
| |
Title: Director |
| |
|
| |
SCANTECH: |
| |
|
| |
SCANTECH IDENTIFICATION BEAM SYSTEMS, LLC |
| |
|
| |
By: |
/s/ Dolan Falconer |
| |
Name: Dolan Falconer |
| |
Title: President and CEO |
| |
|
| |
INVESTOR: |
| |
POLAR MULTI-STRATEGY MASTER FUND |
| |
By its investment advisor |
| |
Polar Asset Management Partners Inc. |
| |
|
| |
By: |
/s/ Andrew Ma |
| |
Name: Andrew Ma |
| |
Title: CCO |
| |
|
| |
By: |
/s/ Kirstie Moore |
| |
Name: Kirstie Moore |
| |
Title: Legal Counsel |
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