| Item
1.01. | Entry
into a Material Definitive Agreement. |
Business
Combination Agreement
On
December 8, 2022, PHP Ventures Acquisition Corp., a Delaware corporation (“PHP”) entered into a definitive Business
Combination Agreement (the “Business Combination Agreement”) with Modulex Modular Buildings Plc, a company registered
in England and Wales with company number 07291662 (“Modulex”) and Modulex Merger Sub, a to-be-formed Cayman
Islands exempted company and wholly-owned subsidiary of Modulex (“Merger Sub”), collectively referred to as the parties.
Merger Sub will be formed prior to consummation of the Business Combination Agreement and will become a party to the Business Combination
Agreement by joinder at the time of its formation.
Business
Combination
Pursuant
to the Business Combination Agreement, subject to the terms and conditions set forth therein, upon the closing (the “Closing”)
of the transactions contemplated by the Business Combination Agreement (collectively, the “Business Combination”):
| ● | The
Parties will effect the merger of PHP with and into Modulex Merger Sub, with Merger Sub continuing
as the surviving entity (the “Merger”), following which the separate corporate
existence of PHP shall cease and Merger Sub shall change its name to a form of Modulex Modular
Buildings and continue as the surviving entity and a wholly-owned subsidiary of Modulex. |
| | | |
| ● | As
a result of the Merger and the Business Combination, all the issued and outstanding capital
stock of PHP shall be converted into the right to receive one (1) ordinary share of Modulex
(“Modulex Ordinary Shares”) upon the terms set forth in the Business Combination
Agreement and in accordance with the applicable provisions of the Delaware General Corporation
Law, all in accordance with the terms of the Business Combination Agreement. |
Merger
Consideration
As
consideration for the Merger, the holders of PHP common stock (“PHP Common Stock”), as of immediately prior to the
effective time of the Business Combination, shall be entitled to receive an equal number of Modulex Ordinary Shares. Modulex will assume
all the outstanding warrants of PHP, and each PHP warrant (the “PHP Warrants”) will become a warrant to purchase the
same number of Modulex Ordinary Shares (the “Modulex Warrants”) being assumed. Each PHP right to acquire one-tenth
(1/10) of one share of PHP Common Stock (the “PHP Rights”) shall become the right to receive one-tenth (1/10) of one
Modulex Ordinary Share (the “Modulex Rights”). In furtherance of the Business Combination, and in accordance with
the terms of the Business Combination Agreement, PHP shall provide an opportunity for PHP stockholders to have their outstanding shares
of PHP Common Stock redeemed on the terms and subject to the conditions set forth in the Business Combination Agreement and PHP’s
certificate of incorporation and bylaws, each as amended from time to time.
Representations
and Warranties; Covenants
Pursuant
to the Business Combination Agreement, the parties made customary representations and warranties for transactions of this type as of
the date of the Business Combination Agreement. The representations and warranties made by PHP and Modulex will not survive the Closing.
Many of the representations and warranties are qualified by materiality or Material Adverse Effect.
“Material Adverse Effect” as used in the Business Combination Agreement 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 on the business, assets, liabilities, results of operations, or condition (financial or otherwise)
of such person or entity and its subsidiaries, taken as a whole, or the ability of such person or entity or any of its subsidiaries on
a timely basis to consummate the transactions contemplated by the Business Combination Agreement or the ancillary documents to which
it is a party or bound or to perform its obligations thereunder, in each case subject to certain customary exceptions. Certain of the
representations are subject to specified exceptions and qualifications contained in the Business Combination Agreement or in information
provided pursuant to certain disclosure schedules to the Business Combination Agreement.
In
addition, the parties to the Business Combination Agreement agreed to be bound by certain covenants that are customary for transactions
of this type, including obligations of the parties to use commercially reasonable efforts to operate their respective businesses in the
ordinary course, to refrain from taking certain specified actions without the prior written consent of the applicable party, not to engage
in trading on material nonpublic information and to maintain confidentiality, in each case, subject to certain exceptions and qualifications.
Additionally, the parties have agreed not to disparage each other or to solicit, negotiate or enter into a competing transaction. PHP
has covenanted to hold a meeting of PHP stockholders for the purpose of approving the Business Combination and the Business Combination
Agreement. The covenants further provide that PHP and Modulex shall cooperate on a best efforts basis to enter into subscription agreements
for a private equity investment in PHP or Modulex, or both PHP and Modulex, on terms mutually acceptable to both parties. The covenants
of the parties in the Business Combination Agreement generally will not survive the Closing, subject to certain exceptions, including
certain covenants and agreements that by their terms are to be performed in whole or in part after the Closing.
Conditions
to Each Party’s Obligation to Close
Pursuant
to the Business Combination Agreement, the obligations of the parties to consummate the Business Combination are subject to the satisfaction
or waiver of certain customary closing conditions of the respective parties, including, without limitation: (a) the representations and
warranties of the respective parties being true and correct subject to the materiality standards contained in the Business Combination
Agreement; (b) material compliance by the parties of their respective pre-closing covenants and agreements, subject to the standards
contained in the Business Combination Agreement; (c) the approval by PHP’s stockholders of the Business Combination; (d) the approval
by Modulex’s stockholders of the Business Combination; (e) any waiting period applicable to the consummation of the Business Combination
Agreement under any antitrust laws shall have expired or been terminated; (f) all consents required to be obtained from any governmental
authority in order to consummate the Business Combination, as set forth in the Business Combination Agreement, shall have been obtained
or made; (g) the consents required to be obtained from or made with any third person in order to consummate the Business Combination,
as set forth in the Business Combination Agreement, shall have each been obtained or made; (h) no governmental authority shall have enacted
any law or order which has the effect of prohibiting the consummation of the Business Combination; (i) the registration statement shall
have been declared effective by the SEC and shall remain effective as of the Closing, and no stop order or similar order shall be in
effect with respect to the registration statement; (j) upon the Closing, after giving effect to the redemption and the PIPE investment,
PHP or Modulex shall have net tangible assets of at least $5,000,001; (k) Modulex’s initial listing application with Nasdaq in
connection with the Business Combination shall have been approved, and the Modulex Ordinary Shares shall have been approved for listing
on Nasdaq; (l) the members of the post-closing company board of directors shall have been elected or appointed as of the Closing in accordance
with the requirements set forth in the Business Combination Agreement; (m) Modulex shall (i) have consummated the Recapitalization, as
defined in the Business Combination Agreement and (ii) provided evidence that the Modulex’s stockholder have adopted the Amended
and Restated Articles of Association of Modulex in form and substance mutually agreeable to PHP and Modulex; and (n) Modulex shall qualify
as a “foreign private issuer” pursuant to Rule 3b-4 of the Exchange Act as of the Closing.
Termination
The
Business Combination Agreement may be terminated under certain customary and limited circumstances at any time prior to the Closing,
including, among others, by the mutual written consent of PHP and Modulex, if any of the conditions to the Closing has not been satisfied
or waived by February 3, 2023, if prohibited by a governmental authority, after an uncured breach by a party of the representations,
warranties, covenants, or agreements contained in the Business Combination Agreement, after a material adverse effect on PHP or Modulex,
if the PHP’s stockholders do not approve the Business Combination, or if Modulex’s stockholders do not approve the Business
Combination. If the Business Combination Agreement is terminated, all further obligations of the
parties under the Business Combination Agreement will terminate and will be of no further force and effect (except those certain obligations
will continue in effect), and no party will have any further liability to any other party thereto except for liability for any fraud
claims or willful breach of an representation, warranty, covenant or obligation under the Business Combination Agreement prior to such
termination.
Governing
Law and Arbitration
The
Business Combination Agreement is governed by Delaware law. All Actions arising out of or relating to the Business Combination Agreement
shall be heard and determined exclusively in the Chancery Courts of the State of Delaware. The internal affairs of Modulex and any provisions
of the Business Combination Agreement that are expressly or otherwise required to be governed by English law shall be respectively governed
by English law.
The
foregoing description of the Business Combination Agreement does not purport to be complete and is qualified in its entirety by reference
to the full text of the Business Combination Agreement filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein
by reference. The Business Combination Agreement provides investors with information regarding its terms and is not intended to provide
any other information about the parties. In particular, the assertions embodied in the representations and warranties contained in the
Business Combination Agreement were made as of the execution date of the Business Combination Agreement only and are qualified by information
in confidential disclosure schedules provided by the parties in connection with the signing of the Business Combination Agreement. These
disclosure schedules contain information that modifies, qualifies, and creates exceptions to the representations and warranties set forth
in the Business Combination Agreement. Moreover, certain representations and warranties in the Business Combination Agreement may have
been used for the purpose of allocating risk between the parties rather than establishing matters of fact 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. Accordingly, you should not rely on the representations and warranties in the Business Combination
Agreement as characterizations of the actual statements of fact about the parties. In addition,
the representations, warranties, covenants and agreements and other terms of the Business Combination 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 Business Combination Agreement, which subsequent information may or may not be fully reflected in PHP’s
public disclosures. Stockholders of the PHP and other interested parties are urged to read the Business Combination Agreement in its
entirety.
Voting
Agreements and Sponsor Support Agreement
In
connection with entry into the Business Combination Agreement, all pre-Merger directors, officers and founding shareholders of Modulex
Ordinary Shares will be subject to a lockup of 90% of their shares for a period ending three years from the closing of the merger. Additionally,
minority shareholders of Modulex will be subject to a lockup of 90% of their shares for a period of two years from the closing date of
the merger. The closing of this proposed Transactions is subject to agreement to these lockups by 90% of the minority shareholders and
founding shareholders, respectively, which term may be amended or waived by PHP at their sole discretion.
In
connection with entry into the Business Combination Agreement, PHP, the Sponsor and Modulex entered into a Sponsor Voting Agreement pursuant
to which the Sponsor has agreed to vote its PHP securities in favor of the approval of the Business Combination Agreement and the Business
Combination and to take other customary actions to cause the Business Combination to occur.
Agreements
to Be Effective as of or Entered into at Closing
At
the Closing, PHP, Modulex, and certain directors, officers and stockholders of Modulex (the “Subject Parties”) will
enter into a lock-up agreement (the “Lock-Up Agreement”), which, among other things, and subject to certain exceptions,
will provide for the Modulex securities held by the Subject Parties to be locked-up for a period commencing on the date of the Closing
and ending on the date that is three (3) years after the date of the Closing.
At
the Closing, Modulex and certain holders of Modulex’s securities (the “Holders”) will enter into a registration
rights agreement (the “Registration Rights Agreement”), pursuant to which, among other things, Modulex will be obligated
to file a registration statement to register the resale of all the registrable securities held by the Holders. The Registration Rights
Agreement will also provide the Holders with “piggy-back” registration rights, subject to certain requirements and customary
conditions.
At
the Closing, PHP, Modulex, and the Sponsor will enter into a founder registration rights agreement (the “Founder Registration
Rights Agreement”) pursuant to which, among other things, all of the rights and obligations of PHP under the Registration Rights
Agreement, dated as of August 16, 2021 (the “Original Agreement”), shall be assigned and delegated to and assumed
by Modulex.
At
the Closing, Modulex intends to adopt an Equity Incentive Plan (the “Equity Incentive Plan”) which will provide for
the grant of equity incentives up to a maximum of 22% of the shares of the Ordinary Shares outstanding at the time of effectiveness
of the Equity Incentive Plan to the directors, officers, employees, consultants and advisors (and prospective directors, officers, employees,
consultants and advisors) of the Modulex.
At
the Closing, Modulex shall enter into employment contracts (the “Employment Agreements”) with minimum terms of three
(3) years with each of the Senior Executive Officers, as defined in the Business Combination Agreement. Modulex may determine to enter
into a new employment agreement with certain of its executives who are not Senior Executive Officers on terms to be reasonably determined
by Modulex in consultation with PHP.
The
foregoing descriptions of the Voting and Support Agreements, the Sponsor Voting Agreement, the Lock-Up Agreement, the Registration Rights
Agreement, the Founder Registration Rights Agreement, the Equity Incentive Plan, and the Employment Agreements do not purport to be complete.
Prospectus
and Proxy Statement
As
promptly as practicable after the effective date of the Business Combination Agreement, the PHP will file with the SEC a Registration
Statement on Form F-4 containing a prospectus and proxy statement (as amended or supplemented, the “Prospectus and Proxy Statement”),
and certain related documents, in connection with a meeting of its stockholders in connection with a special meeting of the Modulex’s
stockholders to be held to consider approval and adoption of (i) the Business Combination Agreement and the Business Combination; (ii)
the issuance of the Modulex Ordinary Shares and Warrants in connection with the Business Combination; the issuance of the PHP Common
Stock in the PIPE investment by PHP stockholders; (iii) any amendments required to the PHP’s certificate of incorporation; (vi)
such other matters as the parties mutually determine to be necessary or appropriate in order to effect the Business Combination; and
(vii) the adjournment of the special meeting of PHP’s stockholders, if necessary, to permit further solicitation and vote of proxies
in the reasonable determination of PHP.
Stock
Exchange Listing
Modulex
shall assist PHP in obtaining Nasdaq approval of the Business Combination and the change of control resulting from the Business Combination
and in filing any listing application necessary for the listing of Modulex on Nasdaq as a successor to PHP. During the period from the
date hereof until the Closing, PHP will use commercially reasonable efforts to maintain the listing of its units, Class A common stock,
warrants, and rights for trading on the Nasdaq Capital Market.
