Item
1.01 Entry into a Material Definitive Agreement.
Merger
Agreement
This
section describes the material provisions of the Merger Agreement (as defined below) but does not purport to describe all of the terms
thereof. The following summary and description of the Merger Agreement is qualified in its entirety by reference to the complete text
of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference. Shareholders of Semper
Paratus Acquisition Corporation and other interested parties are urged to read the Merger Agreement in its entirety. Unless otherwise
defined herein, the capitalized terms used below are defined in the Merger Agreement.
The
Merger
On
June 28, 2023, Semper Paratus Acquisition Corporation, a Cayman Island exempted company (“Semper Paratus”) entered
into an Agreement and Plan of Merger by and among Semper Paratus, Semper Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Semper Paratus (“Merger Sub”), SSVK Associates, LLC, Semper Paratus’ sponsor (the “Sponsor”),
in its capacity as purchaser representative, Tevogen Bio Inc, a Delaware corporation (“Tevogen Bio”), and Ryan Saadi,
in his capacity as seller representative (as may be amended and/or restated from time to time, the “Merger Agreement”),
pursuant to which, among other things, the parties will effect the merger of Merger Sub with and into Tevogen Bio, with Tevogen Bio continuing
as the surviving entity (the “Merger”), as a result of which all of the issued and outstanding capital stock of Tevogen
Bio shall be exchanged for shares of Class A common stock, par value $0.0001 per share, of Semper Paratus (the “Share Exchange”)
subject to the conditions set forth in the Merger Agreement, with Tevogen Bio surviving the Share Exchange as a wholly owned subsidiary
of Semper Paratus (the Share Exchange and the other transactions contemplated by the Merger Agreement,
together, the “Transaction”).
Merger
Consideration
Prior
to the Closing Date, and subject to the satisfaction or waiver of the conditions of the Merger Agreement, Semper Paratus will migrate
out of the Cayman Islands and domesticate (the “Domestication”) as a Delaware corporation in accordance with Section3
88 of the DGCL and Part XIII of the Cayman Islands Companies Act (2021 Revision). In connection with the Domestication, each issued and
outstanding pre-Domestication preferred share, each issued and outstanding pre-Domestication Class A ordinary share, each issued and
outstanding pre-Domestication Class B ordinary share, each issued and outstanding pre-Domestication Private Warrant, each issued and
outstanding pre-Domestication Public Warrant, and each issued and outstanding pre-Domestication Unit shall automatically convert, one
a one-for-one basis, into one share of Purchaser Preferred Stock, one share of Purchaser Class A Common Stock, one share of Purchaser
Class B Common Stock, one Purchaser Private Warrant, one Purchaser Public Warrant, and one Purchaser Public Unit, respectively. Immediately
following the Domestication, (a) each share of Purchaser Class B Common Stock shall convert automatically, one a one-for-one basis, into
one share of Purchaser Class A Common Stock, (b) the Purchaser Class A Common Stock will be reclassified as Purchaser Common Stock, and
(c) each Purchaser Public Unit will be separated into shares of Purchaser Common Stock and Purchaser Public Warrants.
As
consideration for the Merger, the holders of Tevogen Bio’s securities collectively shall be entitled to receive from Semper Paratus,
in the aggregate, a number of shares of Company Class A common stock (the “Merger Consideration”) with an aggregate
value equal to $1,200,000,000. In addition, holders of Tevogen Bio’s securities shall also be entitled to receive from Semper Paratus,
in the aggregate, an additional 20,000,000 shares of Semper Paratus’ Class A common stock in the event that the VWAP of Semper
Paratus’ Class A common stock, collectively, exceeds (a) $15.00 per share for 20 out of any 30 consecutive trading days beginning
on the Closing Date of the Merger Agreement until the 36-month anniversary of the Closing Date, in which case the holders of Tevogen
Bio securities shall be entitled to receive an additional 6,666,667 shares of Company Class A common stock, (b) $17.50 per share for
20 out of any 30 consecutive trading days beginning on the Closing Date of the Merger Agreement until the 36-month anniversary of the
Closing Date, in which case the holders of Tevogen Bio securities shall be entitled to receive an additional 6,666,667 shares of Company
Class A common stock and (c) $20.00 per share for 20 out of any 30 consecutive trading days beginning on the Closing Date of the Merger
Agreement until the 36-month anniversary of the Closing Date, in which case the holders of Tevogen Bio securities shall be entitled to
receive an additional 6,666,666 shares of Company Class A common stock. In addition, for each Earnout Share Payment, Semper Paratus will
also issue to Sponsor an additional 1,500,000 shares of Company Class A common stock.
Representations
and Warranties
The
Merger Agreement contains a number of representations and warranties made by each of Semper Paratus and Tevogen Bio as of the date of
the Merger Agreement or other specified dates. Certain of the representations and warranties are qualified by materiality or Material
Adverse Effect (as defined below), as well as information provided in the disclosure schedules to the Merger Agreement. As used in the
Merger Agreement, “Material Adverse Effect” means, with respect to any specified person or entity, any fact, event,
occurrence, change or effect that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse
effect upon (a) the business, assets, Liabilities, results of operations, prospects or condition (financial or otherwise) of such person
or entity and its subsidiaries, taken as a whole, or (b) the ability of such person or entity or any of its subsidiaries on a timely
basis to consummate the transactions contemplated by the Merger Agreement or the ancillary documents relating to the Merger Agreement
to which such person or entity (or such entity’s subsidiaries) is a party or bound or to perform its obligations thereunder, in
each case, subject to certain customary exceptions.
No
Survival
The
representations and warranties of the parties contained in the Merger Agreement terminate as of, and do not survive, the Closing, and,
following their expiration, there are no indemnification rights for another party’s breach thereof. The covenants and agreements
of the parties contained in the Merger Agreement do not survive the Closing, except those covenants and agreements to be performed after
the Closing, which covenants and agreements will survive until fully performed.
Covenants
of the Parties
Each
party agreed in the Merger Agreement to use its commercially reasonable efforts to effect the Closing and consummate the transactions
contemplated by the Merger Agreement. The Merger Agreement also contains certain customary covenants by each of the parties during the
period between the signing of the Merger Agreement and the earlier of the Closing or the termination of the Merger Agreement in accordance
with its terms (the “Interim Period”), including, among other things, those relating to: (i) the provision of access
to their properties, books and personnel; (ii) the operation of their respective businesses in the ordinary course of business; (iii)
the provision by Tevogen Bio to Semper Paratus of unaudited financial statements on a monthly, quarterly and annual basis; (iv) Semper
Paratus’ public filings; (v) use of proceeds in Semper Paratus’ trust account; (vi) no insider trading; (vii) notifications
of certain breaches, consent requirements or other matters; (viii) the preparation and filing of the Registration Statement as described
in more detail below, (ix) public announcements; and (x) confidentiality. Each party also agreed during the Interim Period not to solicit
or enter into any inquiry, proposal or offer, or any indication of interest in making an offer or proposal for an alternative competing
transaction, to notify the others as promptly as practicable in writing of the receipt of any inquiries, proposals or offers, requests
for information or requests relating to an alternative competing transaction or any requests for non-public information relating to such
transaction, and to keep the other party informed of the status of any such inquiries, proposals, offers or requests for information.
The Merger Agreement also contains certain customary post-Closing covenants including, among other things, those relating to: (a) maintenance
of books and records; (b) tax matters; and (c) indemnification of directors and officers and the purchase of tail directors’ and
officers’ liability insurance.
In
addition, Tevogen Bio agreed to obtain its required shareholder approvals in the manner required under its organizational documents and
applicable law for the execution, delivery and performance of the Merger Agreement and each of the ancillary documents to the Merger
Agreement to which Tevogen Bio is or is required to be a party or bound, and the consummation of the transactions contemplated thereby,
including the Merger.
In
the Merger Agreement the parties made customary covenants regarding the registration statement on Form S-4 to be filed by Semper Paratus
with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities
Act”).
The
Company will distribute a proxy statement to seek the consent of Semper Paratus’ shareholders to, among other things, (i) adopt
and approve the Merger Agreement and the Transaction; (ii) approve, to the extent necessary, the issuance of any shares in connection
with the Equity Line of Credit; (iii) approve the amended certificate of incorporation of Semper Paratus in connection with the Merger;
(iv) the appointment of the members of Semper Paratus’ post-Closing board of directors (the “Post-Closing Board”);
(v) such other matters as Semper Paratus and Tevogen Bio shall hereafter mutually determine to be necessary or appropriate in order to
effect the Transaction and (vi) the adjournment of the Company Special Meeting, if necessary or desirable in the reasonable determination
of Semper Paratus.
The
parties agreed that the Post-Closing Board will consist of seven directors, comprised of (i) one director designated prior to the Closing
by Semper Paratus and (ii) six directors designated by Tevogen Bio, at least four of whom will be required to qualify as an independent
director under NYSE listing rules.
The
parties further agreed to take all action necessary so that the individuals serving as the chief executive officer and chief financial
officer, respectively, of Semper Paratus immediately after the Closing will be the same individuals (in the same office) as that of the
Tevogen Bio immediately prior to the Closing.
Equity
Line of Credit
Additionally,
the Merger Agreement allows (but does not require) Semper Paratus to use commercially reasonable efforts to seek and consummate subscription
agreements with investors totaling in the range of $35,000,000 to $60,000,000 in connection with a private placement of Semper Paratus’
Class A common stock on terms mutually agreeable to Semper Paratus and Tevogen Bio acting reasonably.
Conditions
to Consummation of the Merger
The
Merger Agreement contains customary conditions to Closing, including the following mutual conditions of the parties (unless waived):
(i) approval of the shareholders of Semper Paratus and Tevogen Bio of the Transaction and the other matters requiring shareholder approval;
(ii) approvals of any required governmental authorities and completion of any antitrust expiration periods; (iii) receipt of specified
third party consents; (iv) no law or order preventing the Transaction; (v) the Registration Statement having been declared effective
by the SEC; (vi) no material uncured breach by the other party; (vii) no occurrence of a Material Adverse Effect with respect to the
other party; (viii) the satisfaction of the $5,000,001 minimum net tangible asset test by Semper Paratus; (ix) approval from NYSE for
the listing of the shares of Semper Paratus’ Class A common to be issued in connection with the Transaction; and (x) reconstitution
of the Post-Closing Board as contemplated under the Merger Agreement.
In
addition, unless waived by Tevogen Bio, the obligations of Tevogen Bio to consummate the Transaction are subject to the satisfaction
of the following additional Closing conditions, in addition to the delivery by Semper Paratus of the Related Agreements (as defined and
described in greater detail below), customary certificates and other Closing deliverables: (i) the representations and warranties of
Semper Paratus being true and correct as of the date of the Merger Agreement and as of the Closing (subject to customary exceptions,
including materiality qualifiers); (ii) Semper Paratus having performed in all material respects its obligations and complied in all
material respects with its covenants and agreements under the Merger Agreement required to be performed or complied with by it on or
prior to the date of the Closing; (iii) absence of any Material Adverse Effect with respect to Semper Paratus since the date of the Merger
Agreement which is continuing and uncured; (iv) at the Closing, Semper Paratus having $25,000,000 in cash and cash equivalents, including
funds remaining in the trust account (after giving effect to the completion and payment of any redemptions, Purchaser Expenses, deferred
Purchaser Expenses, loans owned by Semper Paratus to the Sponsor for any Purchaser Expenses, other administrative costs, other Liabilities
of Semper Paratus as of the Closing, and any Transaction Expenses); (v) Semper Paratus shall have made all reasonably necessary arrangements
with the Trustee to the Trust Account to have the Trust Account funds disbursed to Semper Paratus, and there shall be no actions, suits,
proceedings, arbitrations or mediations pending or threatened by any Person (not including Tevogen Bio and its Affiliates) with respect
to or against the Trust Account that would reasonably be expected to have a Material Adverse Effect on Semper Paratus; and (vi) at least
one day prior to Closing, Semper Paratus shall have delivered to Tevogen Bio a written consent of the board of directors of Semper Paratus
(or a duly appointed committee thereof authorized to administer the Purchaser Equity Incentive Plan), authorizing and approving the grant
of awards of restricted stock units under the Purchaser Equity Incentive Plan shares of Purchaser Common Stock to certain individuals
that were executives, employees or individual service providers of Tevogen Bio as of immediately prior to the Closing.
Finally,
unless waived by Semper Paratus, the obligations of Semper Paratus to consummate the Transaction are subject to the satisfaction of the
following additional Closing conditions, in addition to the delivery by Semper Paratus of the Related Agreements (as defined and described
in greater detail below), customary certificates and other Closing deliverables: (i) the representations and warranties of Tevogen Bio
being true and correct as of the date of the Merger Agreement and as of the Closing (subject to customary exceptions, including materiality
qualifiers); (ii) Tevogen Bio having performed in all material respects their respective obligations and complied in all material respects
with their respective covenants and agreements under the Merger Agreement required to be performed or complied with by them on or prior
to the date of the Closing; and (iii) absence of any Material Adverse Effect with respect to Tevogen Bio and its subsidiaries on a consolidated
basis since the date of the Merger Agreement which is continuing and uncured.
Termination
The
Merger Agreement may be terminated under certain customary and limited circumstances at any time prior to the Closing, including: (i)
by mutual written consent of Semper Paratus and Tevogen Bio; (ii) by either Semper Paratus and Tevogen Bio if any of the conditions to
Closing have not been satisfied or waived by December 5, 2023 (the “Outside Date”), provided that any breach or violation
of any representation, warranty or covenant of the party seeking termination is not the cause of the failure of the Closing to occur
by the Outside Date; (iii) by either Semper Paratus or Tevogen Bio if a governmental authority of competent jurisdiction has issued an
order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Transaction, and such order or other
action has become final and non-appealable; (iv) by either Semper Paratus or Tevogen Bio in the event of the other party’s uncured
breach, if such breach would result in the failure of a closing condition (and so long as the terminating party is not also in breach
under the Merger Agreement); (v) by Semper Paratus if there has been a Material Adverse Effect on Tevogen Bio and its subsidiaries on
a consolidated basis following the date of the Merger Agreement that is uncured and continuing; (vi) by Semper Paratus if Tevogen Bio
has not delivered to Semper Paratus by July 15, 2023 audited financial statements of Tevogen Bio (including, in each case, any related
notes thereto), consisting of the consolidated balance sheets of Tevogen Bio as of December 31, 2022 and December 31, 2021, and the related
audited income statements, changes in shareholder equity and statements of cash flows for the fiscal years then ended, each audited by
a PCAOB qualified auditor in accordance with GAAP and PCAOB standards and (vi) by either Semper Paratus or Tevogen Bio if Semper Paratus
and Tevogen Bio holds a special meeting of its shareholders to approve the Merger Agreement and the Transaction, and the required approvals
related to the Merger Agreement and the Transaction of either Semper Paratus’ shareholders or Tevogen Bio’s shareholders
is not obtained.
If
the Merger Agreement is terminated, all further obligations of the parties under the Merger Agreement (except for certain obligations
related to publicity, confidentiality, fees and expenses, trust fund waiver, no recourse, termination and general provisions) will terminate,
and no party to the Merger Agreement will have any further liability to any other party thereto except for liability for fraud. The Merger
Agreement does not provide for any termination fees.
Trust
Account Waiver
Tevogen
Bio and Merger Sub each agreed that they and their affiliates will not have any right, title, interest or claim of any kind in or to
any monies in Semper Paratus’ trust account (including any distributions therefrom) held for its public shareholders, and agreed
not to, and waived any right to, make any claim against the trust account (including any distributions therefrom) other than in connection
with the Closing.
Governing
Law
The
Merger Agreement is governed by the laws of the State of Delaware without regard to the conflict of laws principles thereof. If a dispute
relating to the Merger Agreement arises between the parties, the parties must seek to resolve such dispute amicably within 10 business
days. If they are unable to do so, then such dispute must be resolved via arbitration pursuant to the then-existing expedited procedures
of the American Arbitration Association, except that applications for a temporary restraining order, preliminary injunction, permanent
injunction or other equitable relief or application for enforcement of a resolution are subject to the jurisdiction of the state or federal
courts located in Delaware.
The
Merger Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of
such agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes
of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in
connection with negotiating the Merger Agreement. The Merger Agreement has been filed with this Current Report on Form 8-K to provide
investors with information regarding its terms. It is not intended to provide any other factual information about Semper Paratus, Tevogen
Bio, Merger Sub or any other party to the Merger Agreement. In particular, the representations, warranties, covenants and agreements
contained in the Merger Agreement, which were made only for purposes of such agreement and as of specific dates, were solely for the
benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties (including being
qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement
instead of establishing these matters as facts) 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 Merger Agreement. In addition, the representations, warranties, covenants and agreements and other terms of the Merger
Agreement 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 Merger Agreement, which subsequent information may or may not be fully
reflected in Semper Paratus’ public disclosures.
Related
Agreements
In
connection with the Closing, Semper Paratus and Tevogen Bio will enter into certain additional agreements pursuant to the Merger Agreement
(the “Related Agreements”). The terms of such Related Agreements have not yet been negotiated between Semper Paratus
and Tevogen Bio. Finalizing such Related Agreements on terms mutually acceptable to Semper Paratus and Tevogen Bio is a condition to
Closing of the Merger Agreement. Specifically, the Merger Agreement contemplates delivery of the following Related Agreements: (i) a
note assumption agreement delivered by Semper Paratus to Tevogen Bio pursuant to which Semper Paratus shall assume all obligations of
Tevogen Bio under the Tevogen Bio Convertible Notes; (ii) non-competition agreement delivered by Tevogen Bio’s Significant Company
Holder, Mr. Saadi, in favor of Semper Paratus and Tevogen Bio; (iii) lock-up agreements executed by Mr. Saadi and the Sponsor; and (iv)
registration rights agreements with each shareholder of Tevogen Bio.