(C) take such actions as are necessary or advisable, including obtaining any elections, amendments, consents and waivers from the holders of the Company New Note, in order to cause the Company New Note to be amended, effective immediately prior to the Closing, to provide that it will be assumed as a note of QT Imaging Holdings upon the Closing that (i) will be repayable in cash in accordance with the payment schedule set forth in the BCA, (ii) shall be junior in right to the Yorkville Notes (as defined below) and pari passu in right to the existing outstanding debts of QT Imaging Holdings (which for the sake of clarity is one and the same as GigCapital5) stated in the GigCapital5 SEC Reports but junior in right to the existing outstanding debts of QT Imaging Holdings incurred to enable GigCapital5 to extend GigCapital5’s existing public company directors’ and officers’ liability insurance to provide coverage after September 23, 2023.
Yorkville SEPA
Pursuant to the BCA Amendment, from and after September 21, 2023 through the Closing, GigCapital5 has agreed to use its reasonable best efforts to negotiate and enter into, and QT Imaging has agreed to use its reasonable best efforts to cooperate with and assist GigCapital5 in negotiating and entering into a Standby Equity Purchase Agreement (the “Yorkville SEPA”) with YA II PN, LTD., a Cayman Islands exempt limited partnership (“Yorkville”). If the Yorkville SEPA is ultimately entered into, then GigCapital5 has agreed to fund the first Pre-Paid Advance (as defined in the Yorkville SEPA) and to issue convertible promissory notes in the principal amounts of $5,500,000 and $4,500,000 (the “Yorkville Notes”) in accordance with the terms of the Yorkville SEPA.
Brokers
Pursuant to the BCA Amendment, except for William Blair & Company L.L.C. and Northlands Securities, no broker, finder, or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of GigCapital5 or Merger Sub, except that with the prior written consent of the Company, not to be unreasonably conditioned, withheld or delayed, GigCapital5 may engage with other brokers, finders or investment bankers.
Proxy Statements and Registration Statement
On February 14, 2023, GigCapital5 (with the assistance and cooperation of QT Imaging as reasonably requested by GigCapital5) prepared and filed with the SEC (i) a joint proxy statement/prospectus (as amended or supplemented, the “BCA Proxy Statement”) to be sent to the stockholders of GigCapital5 and from which QT Imaging may derive an information statement that it can send to the stockholders of QT Imaging relating to (A) with respect to QT Imaging’s stockholders, the action to be taken by certain stockholders of QT Imaging pursuant to the approval and adoption of the BCA, the Merger and all other transactions contemplated by the BCA and (B) with respect to GigCapital5’s stockholders, the meeting of GigCapital5’s stockholders (the “GigCapital5 Stockholders’ Meeting”) to be held to consider approval and adoption of (1) the BCA and the Merger, (2) the second amended and restated GigCapital5 Certificate of Incorporation, (3) the equity plan of QTI Holdings, (4) the classes of the members of the QTI Holdings Board as of immediately after the Effective Time, (5) the election of the Initial Post-Closing QTI Holdings Directors to serve as the members of the QTI Holdings Board as of immediately after the Effective Time and until their respective successors are duly elected or appointed and qualified, and (6) any other proposals the parties deem necessary to effectuate the Merger (collectively, the “GigCapital5 Proposals”), and (ii) a registration statement on Form S-4 (together with all amendments to such registration statement, the “Registration Statement”) in which the BCA Proxy Statement will be included as a prospectus, in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the shares of GigCapital5 Common Stock to be issued to the stockholders of QT Imaging pursuant to this Agreement.
In addition, on September 18, 2023, GigCapital5 filed a definitive proxy statement (the “Extension Proxy Statement”) seeking to extend the business combination period to December 31, 2023, without making any additional payments to the trust account of GigCapital5. The meeting of stockholders is scheduled for September 28, 2023 (the “September 2023 Meeting”).
Conditions to Closing
The consummation of the Business Combination is subject to the receipt of the requisite approval of the stockholders of each of GigCapital5 and QT Imaging, and the fulfillment of certain other conditions, as described in greater detail below.
Mutual Conditions
Under the terms of the BCA, the obligations of QT Imaging, GigCapital5 and Merger Sub to consummate the Business Combination, including the Merger, are subject to the satisfaction or waiver (where permissible) at or prior to the Closing of the following conditions: (i) the written consent of the stockholders of QT Imaging approving and adopting the BCA and the Merger and all other transactions contemplated by the BCA (the “Written Consent”) will have been obtained and be in full force and effect; (ii) the GigCapital5 Proposals will have been approved and adopted by the requisite affirmative vote of the stockholders of GigCapital5 in accordance with the BCA Proxy Statement, the General Corporation Law of the State of Delaware, the GigCapital5 Certificate of Incorporation, bylaws and other governing documents, and the rules and regulations of the Exchanges; (iii) no governmental authority will have enacted, issued, promulgated, enforced or entered any law, rule, regulation, judgment, decree, executive order or award which is then in effect and has the effect of making the Transactions illegal or otherwise prohibiting consummation of the transactions (the “Transactions”) contemplated by the BCA and the other agreements described in this Current Report (the “Transaction Documents”); (iv) all applicable waiting periods (and any extensions of such waiting periods) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, in respect of the Transactions will have expired or been terminated; (v) all consents, approvals and authorizations set forth in the BCA will have been obtained from and made with all governmental authorities; (vi) the Registration Statement will have been declared effective under the Securities Act, no stop order suspending the effectiveness of the Registration Statement will be in effect, and no proceedings for purposes of suspending the effectiveness of the Registration Statement will have been initiated or threatened by the SEC; (vii) the shares of GigCapital5 Common Stock will be listed on an Exchange; and; (viii) upon the Closing, and after giving effect to the redemption rights provided for in Section 9.2 of Article IX of the GigCapital5 Certificate of Incorporation (the “Redemption Rights”), GigCapital5 will have net tangible assets of at least $5,000,001 (excluding assets of the Surviving Corporation).