THIS CONVERTIBLE PROMISSORY NOTE (this “NOTE”) AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE. THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE MAKER
MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE MAKER TO THE EFFECT THAT ANY SALE OR OTHER DISPOSITION IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
CONVERTIBLE PROMISSORY NOTE
| Total Principal Amount: up to $1,800,000 |
Dated as of August 22, 2023
|
| (as set forth on the Schedule of Borrowings attached hereto) |
|
FOR VALUE RECEIVED and subject to the terms and conditions set forth herein, Infinite Acquisition Corp., a Cayman Islands exempted company (the “Maker”), promises to pay to Infinite Sponsor LLC, a Delaware limited liability company or its registered
assigns or successors in interest (the “Payee”), the Total Principal Amount (as defined below) in lawful
money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to such account as the
Payee may from time to time designate by written notice in accordance with the provisions of this Note.
1. Principal. The initial principal balance of this Note of $120,000, funded within five (5) business days of the date hereof by the Payee (the “Initial Principal Amount”), together with any funds drawn down by the Maker following the date hereof pursuant to Section 3 below (together with the Initial Principal Amount, the “Total Principal Amount”) shall be due and payable on the effective date of the consummation of the Maker’s initial merger, share exchange, asset acquisition, share purchase, recapitalization,
reorganization or similar business combination with one or more businesses or entities (the “Business Combination”, and such date, the “Maturity Date”), unless accelerated upon the occurrence of an
Event of Default (as defined below). Any balance under the Note may be prepaid at any time; provided, however, that the Payee shall have a right to first convert such
balance pursuant to Section 8 hereof upon notice of such prepayment. Under no circumstances shall any individual, including but not limited to any officer, director, employee or
shareholder of the Maker, be obligated personally for any obligations or liabilities of the Maker hereunder. The Payee understands that if a Business Combination is not consummated, this Note will be repaid solely to the extent that the Maker
has funds available to it outside of its trust account established in connection with its initial public offering of its securities (the “Trust Account” and such offering, the “IPO”), and
that all other amounts will be contributed to capital, forfeited, eliminated or otherwise forgiven or eliminated.
2. Interest. No interest shall accrue on the unpaid principal balance of this Note.
3. Drawdown Requests. Maker and Payee agree that, in addition to the Initial Principal Amount, Maker may request an additional aggregate amount of up to
$1,680,000, which may be drawn down in up to fourteen equal tranches (each a “Drawdown Request”). Each Drawdown Request must be for $120,000 unless a different sum is agreed upon by Maker and Payee. Payee shall fund each
Drawdown Request no later than three (3) business days after receipt of a Drawdown Request. Once an amount is drawn down under this Note, it shall not be available for future Drawdown Requests even if prepaid. No fees, payments or
other amounts shall be due to Payee in connection with, or as a result of, any Drawdown Request by Maker.
4. Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable
attorney’s fees, then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Note.
5. Purpose. The Maker shall apply all the amounts advanced by the Payee under this Note towards the Maker’s working capital requirements and deposits that Maker is required to make pursuant to its
amended and restated memorandum and articles of association (as amended) and following the request of Payee in connection with an optional monthly extension of the time period during which Maker may consummate a Business Combination.
6. Events of Default. Each of the following shall constitute an event of default (“Event of Default”):
(a) Failure to Make Required Payments. Failure by the Maker to pay all or a portion of the Total Principal Amount due pursuant to this Note (to the extent such amount is payable in cash) within five (5) business days of the
Maturity Date and/or, if applicable, failure by the Maker to perform its obligations with respect to the conversion of up to $1,500,000 of the Total Principal Amount of this Note, in whole or in part at the option of the Payee, into Warrants
(as defined below) pursuant to Section 8 hereof.
(b) Voluntary Bankruptcy, Etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors,
or the failure of the Maker generally to pay its debts as such debts become due, or the taking of corporate action by the Maker in furtherance of any of the foregoing.
(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Maker in an involuntary case under any applicable bankruptcy, insolvency or other
similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days.
7. Remedies.
(a) Upon the occurrence of an Event of Default specified in Section 6(a) hereof, the
Payee may, by written notice to the Maker, declare this Note to be due immediately and payable, whereupon the unpaid Total Principal Amount of this Note, and all other amounts payable hereunder, shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Section 6(b) and Section 6(c), the unpaid principal balance of this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without
any action on the part of the Payee.
8. Conversion.
(a) Optional Conversion. Upon consummation of a Business Combination, the Payee shall have the option, but not the obligation, to convert up to $1,500,000 of the Total Principal Amount of this Note, in whole or in part at
the option of the Payee, into warrants of the Maker (each, a “Warrant”), at a conversion price of
$1.00 per Warrant. The Warrants shall be identical to the private placement warrants issued to the Sponsor at the time of the Maker’s IPO (the “Private Placement Warrants”). As promptly as reasonably practicable after notice by the Payee to the Maker to convert the principal balance of this Note, in whole or in part, into Warrants, which notice
must be made at least five (5) business days prior to the consummation of the Business Combination, and after the Payee’s surrender of this Note, the Maker shall have issued and delivered to the Payee, without any charge to Payee, a warrant
certificate or certificates (issued in the name(s) requested by the Payee), or shall have made appropriate book-entry notation on the books and records of the Maker, in each case for the number of Warrants of the Maker issuable upon the
conversion of this Note. The conversion shall be deemed to have been made immediately prior to the close of business on the date of the surrender of this Note and the person or persons entitled to receive the Warrants upon such conversion shall
be treated for all purposes as the record holder or holders of such Warrants as of such date. Each such newly issued Warrant shall include a restricted legend that contemplates the same restrictions as the Private Placement Warrants that were
issued to Payee in connection with the IPO. The Warrants issuable pursuant to this Note shall constitute a “Registrable Security” pursuant to that certain Registration and Shareholder Rights Agreement, dated November 23, 2021, by and among the
Maker, the Payee and certain other security holders named therein.
(b) Fractional Warrants; Effect of Conversion. No fractional Warrants shall be issued upon conversion of this Note. In lieu of any fractional Warrants to the Payee upon conversion of this Note, the Maker shall pay to the
Payee an amount equal to the product obtained by multiplying the Conversion Price by the fraction of a Warrant not issued pursuant to the previous sentence. Upon conversion of this Note in full, this Note shall be cancelled and void without
further action of the Maker or the Payee, and the Maker shall be forever released from all its obligations and liabilities under this Note.
9. Covenants of the Maker. The Maker covenants that any Warrants issuable upon conversion of the Note, when so issued, will be validly issued, fully paid and non-assessable and free from all taxes,
liens and charges with respect to the issuance thereof.
10. Waivers. The Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Note, all
errors, defects and imperfections in any proceedings instituted by the Payee under the terms of this Note, and all benefits that might accrue to the Maker by virtue of any present or future laws exempting any property, real or personal, or any
part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and the Maker agrees that
any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by the Payee.
11. Unconditional Liability. The Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability
shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by the Payee, and consents to any
and all extensions of time, renewals, waivers, or modifications that may be granted by the Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become
parties hereto without notice to the Maker or affecting the Maker’s liability hereunder.
12. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be: (i) in writing and delivered personally or sent by first class registered or certified mail,
overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by
such party or (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted
shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an
overnight courier service or five (5) days after mailing if sent by mail.
13. Construction. THIS NOTE SHALL BE GOVERNED AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
14. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
15. Trust Waiver. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any monies in, or any distribution of or from, the Trust Account, and hereby agrees not to seek recourse, reimbursement, payment or
satisfaction for any Claim against the Trust Account for any reason whatsoever. The Payee hereby agrees not to make any Claim against the Trust Account (including any distributions therefrom), regardless of whether such Claim arises as a result
of, in connection with or relating in any way to, this Note, or any other matter, and regardless of whether such Claim arises based on contract, tort, equity or any other theory of legal liability. To the extent the Payee commences any action
or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Maker (including this Note), which proceeding seeks, in whole or in part, monetary relief against the Maker, the Payee hereby acknowledges
and agrees that its sole remedy shall be against funds held outside of the Trust Account and that such Claim shall not permit the Maker (or any person claiming on its behalf or in lieu of it) to have any Claim against the Trust Account
(including any distributions therefrom) or any amounts contained therein.
16. Tax Treatment. In each case for U.S. federal income tax and all other applicable tax purposes, the Maker and the Payee agree to treat this Note, to the extent permissible under applicable law, as an
equity interest in the Maker (and not as indebtedness), and shall take no contrary position on any tax return or before any taxing authority (unless otherwise required by law). The Maker and the Payee shall reasonably cooperate to structure (i)
any conversion of this Note in connection with a Business Combination and (ii) any contribution, forfeiture or elimination of this Note pursuant to Section 1 in a manner that is
tax-efficient for the Maker and the Payee, taking into account the terms of any Business Combination.
17. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee.
18. Successors and Assigns. Subject to the restrictions on transfer in this Section 18 and Section 19 the rights and
obligations of the Maker and the Payee hereunder shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of any party hereto (by operation of law or otherwise) with the prior written consent of the other
party hereto and any attempted assignment without the required consent shall be void.
19. Transfer of this Note or Securities Issuable on Conversion. With respect to any sale or other disposition of this Note or securities into which this Note may be converted, the Payee shall give written
notice to the Maker prior thereto, describing briefly the manner thereof, together with: (A) (i) a written opinion (unless waived by the Maker) reasonably satisfactory to the Maker in form and substance from counsel reasonably satisfactory to
the Maker to the effect that such sale or other distribution may be effected without registration or qualification under any U.S. federal or state law then in effect and (ii) a written opinion from counsel reasonably satisfactory to the Maker
or a certificate signed by at least one director of the Payee (in either case, unless waived by the Maker), reasonably satisfactory to the Maker in form and substance that such sale or other distribution does not violate, contravene, or result
in a default by the Payee of, any agreement or instrument entered into by the Payee in connection with the IPO or the Business Combination, including but not limited to the Letter Agreement (as defined below), and (B) a written undertaking
executed by the desired transferee reasonably satisfactory to the Maker in form and substance agreeing to be bound by the restrictions on transfer contained herein. Upon receiving such written notice, reasonably satisfactory opinion and/or
certificate (unless waived by the Maker), or other evidence, and such written acknowledgement, the Maker, as promptly as practicable, shall notify the Payee that the Payee may sell or otherwise dispose of this Note or such securities, all in
accordance with the terms of the note delivered to the Maker; provided that for a Permitted Transfer, the requirements listed in subsection (A) shall not apply. If a
determination has been made pursuant to this Section 19 that the opinion of counsel for the Payee, the certificate of the Payee, or other evidence, or the written acknowledgment from
the desired transferee, is not reasonably satisfactory to the Maker, the Maker shall so notify the Payee promptly after such determination has been made. Each Note thus transferred shall bear a legend as to the applicable restrictions on
transferability in order to ensure compliance with the Securities Act, unless in the opinion of counsel for the Maker such legend is not required in order to ensure compliance with the Securities Act. The Maker may issue stop transfer
instructions to its transfer agent in connection with such restrictions. Subject to the foregoing, transfers of this Note shall be registered upon registration on the books maintained for such purpose by or on behalf of the Maker. Prior to
presentation of this Note for registration of transfer, the Maker shall treat the registered holder hereof as the owner and holder of this Note for the purpose of receiving all payments of principal hereon and for all other purposes whatsoever,
whether or not this Note shall be overdue and the Maker shall not be affected by notice to the contrary. For purposes hereof, “Permitted Transfer” shall have the same meaning as any transfer that would be permitted for the Private Placement
Warrants under the Letter Agreement, dated November 23, 2021, by and among the Maker, the Payee and the other parties thereto (the “Letter Agreement”).
20. Acknowledgment. The Payee is acquiring this Note for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution thereof in
violation of applicable securities laws. The Payee understands that the acquisition of this Note involves substantial risk. The Payee has experience as an investor in securities of companies and acknowledges that it is able to fend for itself,
can bear the economic risk of its investment in this Note, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of this investment in this Note and protecting its own
interests in connection with this investment.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned
as of the day and year first above written.
|
Infinite Acquisition Corp.
|
|
|
|
By:
|
/s/ Rich Kleiman |
|
|
Name: Rich Kleiman
|
|
Title: Co-Chief Executive Officer
|
Agreed and Acknowledged as of the date first written above:
|
Infinite Sponsor LLC
|
|
|
|
|
By:
|
/s/ Alexander Michael |
|
|
|
Name: Alexander Michael
|
|
|
Title: Manager
|
|
The following increases or decreases in this Promissory Note have been made:
|
Date of Increase
or Decrease
|
|
Amount of decrease in Principal
Amount of this Promissory Note
|
|
Amount of increase in
Principal Amount of this
Promissory Note
|
|
Principal Amount of this
Promissory Note following
such decrease or increase
|
|
August 22, 2023
|
|
—
|
|
$120,000
|
|
$120,000
|