1009-00001 · Skybridge Fintech Ltd · Closing

officers-certificate-reps-bringdown.docx DOCUMENT Funds

22 / 74 ← → ✕

OFFICER'S CERTIFICATE

Representations and Warranties Bring-Down Certificate

Skybridge Fintech Ltd. a Delaware corporation

January 15, 2024

This Officer's Certificate (this "Certificate") is delivered pursuant to Section 6.2(d) of that certain Note Purchase Agreement, dated as of January 15, 2024 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Note Purchase Agreement"), by and among Skybridge Fintech Ltd., a Delaware corporation (the "Company"), and the Purchasers listed on Schedule 1 thereto, namely:

(i) Ridgeline Ventures Fund IV, L.P.;

(ii) Beacon Hill Capital Partners, LLC;

(iii) Northstar Innovation Fund II, L.P.; and

(iv) Halcyon Growth Equity, L.P.

(each, a "Purchaser" and, collectively, the "Purchasers").

The Note Purchase Agreement provides for the issuance and sale by the Company of convertible promissory notes in the aggregate principal amount of Sixty Million Dollars ($60,000,000) (the "Notes"). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

RECITALS

A. The undersigned, Arjun Mehta, Chief Executive Officer and Co-Founder, and David Lindstrom, Chief Financial Officer, of Skybridge Fintech Ltd., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), hereby certify, in their respective capacities as officers of the Company and not in their individual capacities, as follows.

B. This Certificate is delivered in connection with the Initial Closing (as defined in the Note Purchase Agreement) occurring on January 15, 2024, pursuant to Section 6.2(d) of the Note Purchase Agreement, as a condition precedent to the obligations of the Purchasers to consummate the purchase of convertible promissory notes in the aggregate principal amount of Forty-Five Million Dollars ($45,000,000) at the Initial Closing. The delivery of this Certificate is an express closing condition set forth in Section 6.2 of the Note Purchase Agreement, and the undersigned officers understand and acknowledge that the Purchasers would not consummate the Initial Closing absent receipt of this Certificate.

C. Reference is hereby made to the Note Purchase Agreement, dated as of January 15, 2024, by and among the Company and the Purchasers named therein, which Note Purchase Agreement provides for the issuance and sale of convertible promissory notes bearing interest at the rate of six percent (6.00%) per annum (600 basis points), computed on the basis of a 365-day year, maturing on January 15, 2026 (the "Maturity Date"), with a pre-money valuation cap of Seven Hundred Fifty Million Dollars ($750,000,000) (the "Valuation Cap") and a twenty percent (20%) conversion discount upon the occurrence of a Qualified Financing, defined as an equity financing in which the Company raises aggregate gross proceeds of not less than Eighty Million Dollars ($80,000,000) (exclusive of amounts raised upon conversion of the Notes and any other convertible securities then outstanding). The terms of the Notes, including the applicable conversion mechanics, are set forth in the form of Note attached as Exhibit A to the Note Purchase Agreement.

CERTIFICATIONS

The undersigned officers of the Company hereby certify, jointly and severally, as follows:

Section 1. Representations and Warranties Bring-Down Certification.

Each of the representations and warranties of the Company set forth in Article III of the Note Purchase Agreement is true and correct in all material respects as of the date hereof, January 15, 2024, with the same force and effect as though such representations and warranties had been made on and as of the date hereof; provided, however, that to the extent any such representation or warranty expressly speaks as of a specified earlier date, such representation and warranty is true and correct in all material respects as of such earlier date. For the avoidance of doubt, with respect to any representation or warranty that is qualified by materiality, Material Adverse Effect, or similar qualifications, such representation or warranty is true and correct in all respects (after giving effect to such materiality, Material Adverse Effect, or similar qualification) as of the date hereof or, if such representation or warranty expressly relates to a specified earlier date, as of such earlier date.

Without limiting the generality of the foregoing, the undersigned officers hereby specifically confirm that the Company Disclosure Schedule delivered by the Company to the Purchasers on January 14, 2024 (the "Disclosure Schedule") accurately and completely sets forth all exceptions, qualifications, and supplemental information required to be disclosed therein with respect to the representations and warranties contained in Article III of the Note Purchase Agreement. As of the date hereof, no updates, supplements, or modifications to the Disclosure Schedule are required. No fact, circumstance, event, or development has occurred since the delivery of the Disclosure Schedule on January 14, 2024 that would require any amendment, supplement, or update to any Schedule or section thereof in order for the representations and warranties of the Company to be true and correct in all material respects as of the date hereof.

Section 2. Covenants Compliance Certification.

The Company has performed and complied in all material respects with all covenants, agreements, and obligations required to be performed or complied with by the Company under the Note Purchase Agreement at or prior to the date of the Initial Closing. Without limiting the generality of the foregoing, the Company has satisfied each of the affirmative covenants set forth in Article V of the Note Purchase Agreement, including but not limited to any obligations relating to the filing of regulatory applications, the maintenance of insurance, the delivery of closing deliverables, and the execution of ancillary transaction documents required to be executed and delivered on or prior to the Initial Closing. The undersigned officers are not aware of any facts, circumstances, or conditions that would prevent the Company from continuing to perform and comply with its covenants, agreements, and obligations under the Note Purchase Agreement following the Initial Closing.

Section 3. No Material Adverse Effect.

Since September 30, 2023 (the date of the most recent reviewed financial statements of the Company, prepared by Pinnacle Audit Group LLP and delivered to the Purchasers in connection with the negotiation of the Note Purchase Agreement), there has been no event, occurrence, development, or state of circumstances or facts that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect (as such term is defined in Section 1.1 of the Note Purchase Agreement) on the Company, including without limitation any Material Adverse Effect on:

(a) the financial condition of the Company;

(b) the results of operations of the Company;

(d) the properties or assets (whether tangible or intangible) of the Company;

(e) the liabilities (whether absolute, accrued, contingent, or otherwise) of the Company; or

(f) the prospects of the Company.

The undersigned officers confirm that the financial statements of the Company for the fiscal quarter ended September 30, 2023, as reviewed by Pinnacle Audit Group LLP, were prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby and fairly present in all material respects the financial condition and results of operations of the Company as of the dates thereof and for the periods covered thereby, subject to normal year-end audit adjustments and the absence of footnote disclosures.

Section 4. Corporate Authorization.

All corporate action on the part of the Company, its directors, officers, and stockholders necessary for (a) the authorization, execution, delivery, and performance of the Note Purchase Agreement and each of the related transaction documents contemplated thereby (including, without limitation, the Notes, the Investors' Rights Agreement, the Security Agreement, and the Subordination Agreement), and (b) the issuance and sale of the Notes in accordance with the terms and conditions of the Note Purchase Agreement, has been duly and validly taken. Without limiting the generality of the foregoing:

(i) The Board of Directors of the Company authorized and approved the execution, delivery, and performance of the Note Purchase Agreement and the transactions contemplated thereby, including the issuance of the Notes, by Unanimous Written Consent of the Board of Directors dated January 10, 2024 (the "Board Consent"), a true, correct, and complete copy of which has been delivered to counsel for the Purchasers;

(ii) The holders of a majority of the outstanding shares of capital stock of the Company entitled to vote thereon approved the execution, delivery, and performance of the Note Purchase Agreement and the transactions contemplated thereby, including the issuance of the Notes, by Written Consent of Stockholders in Lieu of Special Meeting dated January 12, 2024 (the "Stockholder Consent"), obtained in accordance with Section 228 of the Delaware General Corporation Law and the Company's Bylaws, a true, correct, and complete copy of which has been delivered to counsel for the Purchasers; and

(iii) No further corporate approval, stockholder vote, consent, authorization, or other action is required in connection with the execution, delivery, and performance of the Note Purchase Agreement, the issuance and sale of the Notes, or the consummation of any of the transactions contemplated by the Note Purchase Agreement and the related transaction documents.

Section 5. No Default or Event of Default.

No event has occurred and is continuing, and no event would result from the execution and delivery of the Note Purchase Agreement or the consummation of the transactions contemplated thereby (including, without limitation, the issuance and sale of the Notes), that constitutes or would constitute (with or without the giving of notice, the lapse of time, or both) a default or event of default under any material agreement, contract, instrument, mortgage, lien, lease, permit, license, or other arrangement to which the Company is a party or by which the Company or any of its properties or assets are bound or affected.

Without limiting the generality of the foregoing, the undersigned officers specifically certify as follows with respect to the Company's existing indebtedness:

(a) Kelvantis Lending Corp. Facility. The Company is a party to that certain Loan and Security Agreement, dated as of August 15, 2022, by and between Kelvantis Lending Corp. ("Kelvantis") and Skybridge Fintech Ltd. (as amended, the "Kelvantis Facility"), pursuant to which Kelvantis provided the Company with a venture debt facility in the aggregate principal amount of Fifteen Million Dollars ($15,000,000), maturing on August 15, 2025. The undersigned officers confirm that:

(I) A consent and waiver letter from Kelvantis Lending Corp. (the "Kelvantis Consent"), consenting to the execution, delivery, and performance of the Note Purchase Agreement and the issuance and sale of the Notes, and waiving any default or event of default that might otherwise arise under the Kelvantis Facility as a result of the transactions contemplated by the Note Purchase Agreement, was duly executed and delivered by Kelvantis on January 12, 2024, and a true, correct, and complete copy of such Kelvantis Consent has been delivered to counsel for the Purchasers;

(II) No default or event of default currently exists under the Kelvantis Facility, and no default or event of default will result under the Kelvantis Facility from the issuance and sale of the Notes or the consummation of any of the other transactions contemplated by the Note Purchase Agreement; and

(III) A Subordination Agreement, duly executed and delivered by and among Kelvantis Lending Corp., the Purchasers, and the Company as of the date hereof (the "Subordination Agreement"), setting forth the respective rights, priorities, and obligations of Kelvantis and the Purchasers with respect to the Company's obligations under the Kelvantis Facility and the Notes, has been entered into and is in full force and effect.

(b) Other Material Agreements. Other than the Kelvantis Facility, the Company is not a party to any other agreement, instrument, or arrangement that requires the consent or waiver of any third party in connection with the transactions contemplated by the Note Purchase Agreement, except as disclosed in the Disclosure Schedule.

Section 6. Litigation and Proceedings.

There is no action, suit, claim, proceeding, arbitration, or investigation (whether at law or in equity, whether civil, criminal, or administrative) pending or, to the knowledge of the undersigned officers after due inquiry, threatened against the Company or any of its officers, directors, or key employees (in their capacities as such) before any court, governmental authority, arbitrator, or other tribunal that:

(a) questions or challenges the validity or enforceability of the Note Purchase Agreement, the Notes, or any of the other transaction documents contemplated thereby, or any action taken or to be taken by the Company pursuant thereto or in connection therewith; or

(b) would, if adversely determined, individually or in the aggregate, reasonably be expected to (i) have a Material Adverse Effect on the Company, (ii) result in a material liability to the Company, or (iii) materially impair the ability of the Company to perform its obligations under the Note Purchase Agreement or the Notes.

The undersigned officers further certify that the Company has not received any written notice or, to the knowledge of the undersigned officers, any oral communication from any governmental authority indicating that any governmental investigation, inquiry, or proceeding is pending or contemplated against the Company.

Section 7. Good Standing.

The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

In support of the foregoing certification, the undersigned officers confirm that a Certificate of Good Standing for the Company was obtained from the Secretary of State of the State of Delaware on January 11, 2024, a true, correct, and complete copy of which has been delivered to counsel for the Purchasers. The Company's file number with the Delaware Secretary of State is 6384291.

Section 8. Capitalization.

The capitalization of the Company as set forth in Section 3.3 of the Note Purchase Agreement and Schedule 3.3 of the Disclosure Schedule is accurate and complete in all material respects as of the date hereof. Without limiting the generality of the foregoing:

(a) On a fully diluted basis, and giving effect to all outstanding shares, options (whether vested or unvested), warrants, and other rights to acquire shares of the Company's capital stock, and assuming the exercise or conversion of all such outstanding securities, the Company has approximately 48,500,000 shares outstanding on a fully diluted basis as of immediately prior to the Initial Closing (the "Pre-Bridge Fully Diluted Count");

(b) There are sufficient authorized but unissued shares of the Company's capital stock (including, without limitation, shares of Common Stock and Preferred Stock) available and reserved to permit the conversion of the Notes in accordance with their terms at the Valuation Cap conversion price. For illustrative purposes, the cap-implied price per share as of the date hereof is approximately $15.46, calculated as the Valuation Cap of $750,000,000 divided by the Pre-Bridge Fully Diluted Count of 48,500,000 shares;

(c) Except as set forth in the Disclosure Schedule, there are no outstanding options, warrants, rights (including conversion or preemptive rights), or agreements for the purchase or acquisition from the Company of any shares of its capital stock, other than (i) shares reserved for issuance under the Company's 2021 Equity Incentive Plan and (ii) shares issuable upon conversion of the Notes; and

(d) The Company has not authorized or issued, and is not obligated to authorize or issue, any shares of capital stock or other equity interests except as disclosed in the Note Purchase Agreement and the Disclosure Schedule.

Section 9. Use of Proceeds.

The proceeds of the convertible note financing contemplated by the Note Purchase Agreement will be used by the Company solely for the purposes set forth in Section 5.8 of the Note Purchase Agreement, including without limitation (a) general corporate purposes, (b) working capital, and (c) product development. No portion of the proceeds of the Notes will be used, directly or indirectly, (i) in violation of any applicable federal, state, local, or foreign law, rule, or regulation, including without limitation the Foreign Corrupt Practices Act of 1977, as amended, applicable anti-money laundering laws and regulations, or applicable sanctions administered by the U.S. Department of the Treasury's Office of Foreign Assets Control, (ii) for the purpose of purchasing or carrying any "margin stock" within the meaning of Regulations T, U, and X of the Board of Governors of the Federal Reserve System, or (iii) for any purpose not described in the Note Purchase Agreement without the prior written consent of the Purchasers holding a majority of the aggregate principal amount of the Notes then outstanding.

Section 10. Officers' Knowledge and Authority.

Each of the undersigned officers hereby certifies that:

(a) He is a duly elected or appointed officer of the Company, holding the title set forth next to his name on the signature page hereof, and is authorized by the Board of Directors of the Company, including pursuant to the Board Consent, to execute and deliver this Certificate on behalf of the Company;

(b) He has made due inquiry and investigation, including consultation with appropriate officers, employees, agents, accountants, and legal counsel of the Company, as necessary and appropriate to make the certifications and representations contained herein, and he believes such certifications and representations to be true, correct, and complete in all material respects; and

(c) This Certificate is being delivered by the undersigned solely in his capacity as an officer of the Company and not in any personal or individual capacity. Nothing contained herein shall be deemed to impose, or shall be construed as imposing, any personal liability on the undersigned officers in connection with the certifications set forth herein, except to the extent that any such certification is made fraudulently or in bad faith.

Section 11. Reliance.

The undersigned officers acknowledge that the Purchasers are relying on the accuracy and completeness of the certifications set forth in this Certificate in consummating the Initial Closing under the Note Purchase Agreement and in making the investment decision to purchase the Notes at the Initial Closing. The undersigned officers further acknowledge that, but for the delivery of this Certificate and the accuracy of the certifications contained herein, the Purchasers would not consummate the Initial Closing or purchase the Notes.

This Certificate may also be relied upon by Calderwood & Harkness LLP, counsel to the Purchasers, in connection with the preparation and delivery of the legal opinion of Calderwood & Harkness LLP, dated January 15, 2024, delivered to the Purchasers as a condition to the Initial Closing pursuant to Section 6.2(e) of the Note Purchase Agreement.

[Remainder of page intentionally left blank. Signature page follows.]

SIGNATURE PAGE TO OFFICER'S CERTIFICATE

Representations and Warranties Bring-Down Certificate

Skybridge Fintech Ltd.

IN WITNESS WHEREOF, the undersigned officers of the Company have executed and delivered this Officer's Certificate as of the date first set forth above.

SKYBRIDGE FINTECH LTD.

By: ________

Name: Arjun Mehta

Title: Chief Executive Officer and Co-Founder

Date: January 15, 2024

SKYBRIDGE FINTECH LTD.

By: ________

Name: David Lindstrom

Title: Chief Financial Officer

Date: January 15, 2024

Company Address: Skybridge Fintech Ltd. 1400 Market Street, Suite 2200 Wilmington, DE 19801

Attention: Arjun Mehta, Chief Executive Officer

Telephone: (302) 555-4800

Email: amehta@skybridgefintech.com

OFFICER'S CERTIFICATE
Representations and Warranties Bring-Down Certificate
Skybridge Fintech Ltd. a Delaware corporation
January 15, 2024
This Officer's Certificate (this "Certificate") is delivered pursuant to Section 6.2(d) of that certain Note Purchase Agreement, dated as of January 15, 2024 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Note Purchase Agreement"), by and among Skybridge Fintech Ltd., a Delaware corporation (the "Company"), and the Purchasers listed on Schedule 1 thereto, namely:
(i) Ridgeline Ventures Fund IV, L.P.;
(ii) Beacon Hill Capital Partners, LLC;
(iii) Northstar Innovation Fund II, L.P.; and
(iv) Halcyon Growth Equity, L.P.
(each, a "Purchaser" and, collectively, the "Purchasers").
The Note Purchase Agreement provides for the issuance and sale by the Company of convertible promissory notes in the aggregate principal amount of Sixty Million Dollars ($60,000,000) (the "Notes"). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
RECITALS
A. The undersigned, Arjun Mehta, Chief Executive Officer and Co-Founder, and David Lindstrom, Chief Financial Officer, of Skybridge Fintech Ltd., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), hereby certify, in their respective capacities as officers of the Company and not in their individual capacities, as follows.
B. This Certificate is delivered in connection with the Initial Closing (as defined in the Note Purchase Agreement) occurring on January 15, 2024, pursuant to Section 6.2(d) of the Note Purchase Agreement, as a condition precedent to the obligations of the Purchasers to consummate the purchase of convertible promissory notes in the aggregate principal amount of Forty-Five Million Dollars ($45,000,000) at the Initial Closing. The delivery of this Certificate is an express closing condition set forth in Section 6.2 of the Note Purchase Agreement, and the undersigned officers understand and acknowledge that the Purchasers would not consummate the Initial Closing absent receipt of this Certificate.
C. Reference is hereby made to the Note Purchase Agreement, dated as of January 15, 2024, by and among the Company and the Purchasers named therein, which Note Purchase Agreement provides for the issuance and sale of convertible promissory notes bearing interest at the rate of six percent (6.00%) per annum (600 basis points), computed on the basis of a 365-day year, maturing on January 15, 2026 (the "Maturity Date"), with a pre-money valuation cap of Seven Hundred Fifty Million Dollars ($750,000,000) (the "Valuation Cap") and a twenty percent (20%) conversion discount upon the occurrence of a Qualified Financing, defined as an equity financing in which the Company raises aggregate gross proceeds of not less than Eighty Million Dollars ($80,000,000) (exclusive of amounts raised upon conversion of the Notes and any other convertible securities then outstanding). The terms of the Notes, including the applicable conversion mechanics, are set forth in the form of Note attached as Exhibit A to the Note Purchase Agreement.
CERTIFICATIONS
The undersigned officers of the Company hereby certify, jointly and severally, as follows:
Section 1. Representations and Warranties Bring-Down Certification.
Each of the representations and warranties of the Company set forth in Article III of the Note Purchase Agreement is true and correct in all material respects as of the date hereof, January 15, 2024, with the same force and effect as though such representations and warranties had been made on and as of the date hereof; provided, however, that to the extent any such representation or warranty expressly speaks as of a specified earlier date, such representation and warranty is true and correct in all material respects as of such earlier date. For the avoidance of doubt, with respect to any representation or warranty that is qualified by materiality, Material Adverse Effect, or similar qualifications, such representation or warranty is true and correct in all respects (after giving effect to such materiality, Material Adverse Effect, or similar qualification) as of the date hereof or, if such representation or warranty expressly relates to a specified earlier date, as of such earlier date.
Without limiting the generality of the foregoing, the undersigned officers hereby specifically confirm that the Company Disclosure Schedule delivered by the Company to the Purchasers on January 14, 2024 (the "Disclosure Schedule") accurately and completely sets forth all exceptions, qualifications, and supplemental information required to be disclosed therein with respect to the representations and warranties contained in Article III of the Note Purchase Agreement. As of the date hereof, no updates, supplements, or modifications to the Disclosure Schedule are required. No fact, circumstance, event, or development has occurred since the delivery of the Disclosure Schedule on January 14, 2024 that would require any amendment, supplement, or update to any Schedule or section thereof in order for the representations and warranties of the Company to be true and correct in all material respects as of the date hereof.
Section 2. Covenants Compliance Certification.
The Company has performed and complied in all material respects with all covenants, agreements, and obligations required to be performed or complied with by the Company under the Note Purchase Agreement at or prior to the date of the Initial Closing. Without limiting the generality of the foregoing, the Company has satisfied each of the affirmative covenants set forth in Article V of the Note Purchase Agreement, including but not limited to any obligations relating to the filing of regulatory applications, the maintenance of insurance, the delivery of closing deliverables, and the execution of ancillary transaction documents required to be executed and delivered on or prior to the Initial Closing. The undersigned officers are not aware of any facts, circumstances, or conditions that would prevent the Company from continuing to perform and comply with its covenants, agreements, and obligations under the Note Purchase Agreement following the Initial Closing.
Section 3. No Material Adverse Effect.
Since September 30, 2023 (the date of the most recent reviewed financial statements of the Company, prepared by Pinnacle Audit Group LLP and delivered to the Purchasers in connection with the negotiation of the Note Purchase Agreement), there has been no event, occurrence, development, or state of circumstances or facts that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect (as such term is defined in Section 1.1 of the Note Purchase Agreement) on the Company, including without limitation any Material Adverse Effect on:
(a) the financial condition of the Company;
(b) the results of operations of the Company;
(c) the business of the Company as presently conducted and as proposed to be conducted;
(d) the properties or assets (whether tangible or intangible) of the Company;
(e) the liabilities (whether absolute, accrued, contingent, or otherwise) of the Company; or
(f) the prospects of the Company.
The undersigned officers confirm that the financial statements of the Company for the fiscal quarter ended September 30, 2023, as reviewed by Pinnacle Audit Group LLP, were prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby and fairly present in all material respects the financial condition and results of operations of the Company as of the dates thereof and for the periods covered thereby, subject to normal year-end audit adjustments and the absence of footnote disclosures.
Section 4. Corporate Authorization.
All corporate action on the part of the Company, its directors, officers, and stockholders necessary for (a) the authorization, execution, delivery, and performance of the Note Purchase Agreement and each of the related transaction documents contemplated thereby (including, without limitation, the Notes, the Investors' Rights Agreement, the Security Agreement, and the Subordination Agreement), and (b) the issuance and sale of the Notes in accordance with the terms and conditions of the Note Purchase Agreement, has been duly and validly taken. Without limiting the generality of the foregoing:
(i) The Board of Directors of the Company authorized and approved the execution, delivery, and performance of the Note Purchase Agreement and the transactions contemplated thereby, including the issuance of the Notes, by Unanimous Written Consent of the Board of Directors dated January 10, 2024 (the "Board Consent"), a true, correct, and complete copy of which has been delivered to counsel for the Purchasers;
(ii) The holders of a majority of the outstanding shares of capital stock of the Company entitled to vote thereon approved the execution, delivery, and performance of the Note Purchase Agreement and the transactions contemplated thereby, including the issuance of the Notes, by Written Consent of Stockholders in Lieu of Special Meeting dated January 12, 2024 (the "Stockholder Consent"), obtained in accordance with Section 228 of the Delaware General Corporation Law and the Company's Bylaws, a true, correct, and complete copy of which has been delivered to counsel for the Purchasers; and
(iii) No further corporate approval, stockholder vote, consent, authorization, or other action is required in connection with the execution, delivery, and performance of the Note Purchase Agreement, the issuance and sale of the Notes, or the consummation of any of the transactions contemplated by the Note Purchase Agreement and the related transaction documents.
Section 5. No Default or Event of Default.
No event has occurred and is continuing, and no event would result from the execution and delivery of the Note Purchase Agreement or the consummation of the transactions contemplated thereby (including, without limitation, the issuance and sale of the Notes), that constitutes or would constitute (with or without the giving of notice, the lapse of time, or both) a default or event of default under any material agreement, contract, instrument, mortgage, lien, lease, permit, license, or other arrangement to which the Company is a party or by which the Company or any of its properties or assets are bound or affected.
Without limiting the generality of the foregoing, the undersigned officers specifically certify as follows with respect to the Company's existing indebtedness:
(a) Kelvantis Lending Corp. Facility. The Company is a party to that certain Loan and Security Agreement, dated as of August 15, 2022, by and between Kelvantis Lending Corp. ("Kelvantis") and Skybridge Fintech Ltd. (as amended, the "Kelvantis Facility"), pursuant to which Kelvantis provided the Company with a venture debt facility in the aggregate principal amount of Fifteen Million Dollars ($15,000,000), maturing on August 15, 2025. The undersigned officers confirm that:
(I) A consent and waiver letter from Kelvantis Lending Corp. (the "Kelvantis Consent"), consenting to the execution, delivery, and performance of the Note Purchase Agreement and the issuance and sale of the Notes, and waiving any default or event of default that might otherwise arise under the Kelvantis Facility as a result of the transactions contemplated by the Note Purchase Agreement, was duly executed and delivered by Kelvantis on January 12, 2024, and a true, correct, and complete copy of such Kelvantis Consent has been delivered to counsel for the Purchasers;
(II) No default or event of default currently exists under the Kelvantis Facility, and no default or event of default will result under the Kelvantis Facility from the issuance and sale of the Notes or the consummation of any of the other transactions contemplated by the Note Purchase Agreement; and
(III) A Subordination Agreement, duly executed and delivered by and among Kelvantis Lending Corp., the Purchasers, and the Company as of the date hereof (the "Subordination Agreement"), setting forth the respective rights, priorities, and obligations of Kelvantis and the Purchasers with respect to the Company's obligations under the Kelvantis Facility and the Notes, has been entered into and is in full force and effect.
(b) Other Material Agreements. Other than the Kelvantis Facility, the Company is not a party to any other agreement, instrument, or arrangement that requires the consent or waiver of any third party in connection with the transactions contemplated by the Note Purchase Agreement, except as disclosed in the Disclosure Schedule.
Section 6. Litigation and Proceedings.
There is no action, suit, claim, proceeding, arbitration, or investigation (whether at law or in equity, whether civil, criminal, or administrative) pending or, to the knowledge of the undersigned officers after due inquiry, threatened against the Company or any of its officers, directors, or key employees (in their capacities as such) before any court, governmental authority, arbitrator, or other tribunal that:
(a) questions or challenges the validity or enforceability of the Note Purchase Agreement, the Notes, or any of the other transaction documents contemplated thereby, or any action taken or to be taken by the Company pursuant thereto or in connection therewith; or
(b) would, if adversely determined, individually or in the aggregate, reasonably be expected to (i) have a Material Adverse Effect on the Company, (ii) result in a material liability to the Company, or (iii) materially impair the ability of the Company to perform its obligations under the Note Purchase Agreement or the Notes.
The undersigned officers further certify that the Company has not received any written notice or, to the knowledge of the undersigned officers, any oral communication from any governmental authority indicating that any governmental investigation, inquiry, or proceeding is pending or contemplated against the Company.
Section 7. Good Standing.
The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
In support of the foregoing certification, the undersigned officers confirm that a Certificate of Good Standing for the Company was obtained from the Secretary of State of the State of Delaware on January 11, 2024, a true, correct, and complete copy of which has been delivered to counsel for the Purchasers. The Company's file number with the Delaware Secretary of State is 6384291.
Section 8. Capitalization.
The capitalization of the Company as set forth in Section 3.3 of the Note Purchase Agreement and Schedule 3.3 of the Disclosure Schedule is accurate and complete in all material respects as of the date hereof. Without limiting the generality of the foregoing:
(a) On a fully diluted basis, and giving effect to all outstanding shares, options (whether vested or unvested), warrants, and other rights to acquire shares of the Company's capital stock, and assuming the exercise or conversion of all such outstanding securities, the Company has approximately 48,500,000 shares outstanding on a fully diluted basis as of immediately prior to the Initial Closing (the "Pre-Bridge Fully Diluted Count");
(b) There are sufficient authorized but unissued shares of the Company's capital stock (including, without limitation, shares of Common Stock and Preferred Stock) available and reserved to permit the conversion of the Notes in accordance with their terms at the Valuation Cap conversion price. For illustrative purposes, the cap-implied price per share as of the date hereof is approximately $15.46, calculated as the Valuation Cap of $750,000,000 divided by the Pre-Bridge Fully Diluted Count of 48,500,000 shares;
(c) Except as set forth in the Disclosure Schedule, there are no outstanding options, warrants, rights (including conversion or preemptive rights), or agreements for the purchase or acquisition from the Company of any shares of its capital stock, other than (i) shares reserved for issuance under the Company's 2021 Equity Incentive Plan and (ii) shares issuable upon conversion of the Notes; and
(d) The Company has not authorized or issued, and is not obligated to authorize or issue, any shares of capital stock or other equity interests except as disclosed in the Note Purchase Agreement and the Disclosure Schedule.
Section 9. Use of Proceeds.
The proceeds of the convertible note financing contemplated by the Note Purchase Agreement will be used by the Company solely for the purposes set forth in Section 5.8 of the Note Purchase Agreement, including without limitation (a) general corporate purposes, (b) working capital, and (c) product development. No portion of the proceeds of the Notes will be used, directly or indirectly, (i) in violation of any applicable federal, state, local, or foreign law, rule, or regulation, including without limitation the Foreign Corrupt Practices Act of 1977, as amended, applicable anti-money laundering laws and regulations, or applicable sanctions administered by the U.S. Department of the Treasury's Office of Foreign Assets Control, (ii) for the purpose of purchasing or carrying any "margin stock" within the meaning of Regulations T, U, and X of the Board of Governors of the Federal Reserve System, or (iii) for any purpose not described in the Note Purchase Agreement without the prior written consent of the Purchasers holding a majority of the aggregate principal amount of the Notes then outstanding.
Section 10. Officers' Knowledge and Authority.
Each of the undersigned officers hereby certifies that:
(a) He is a duly elected or appointed officer of the Company, holding the title set forth next to his name on the signature page hereof, and is authorized by the Board of Directors of the Company, including pursuant to the Board Consent, to execute and deliver this Certificate on behalf of the Company;
(b) He has made due inquiry and investigation, including consultation with appropriate officers, employees, agents, accountants, and legal counsel of the Company, as necessary and appropriate to make the certifications and representations contained herein, and he believes such certifications and representations to be true, correct, and complete in all material respects; and
(c) This Certificate is being delivered by the undersigned solely in his capacity as an officer of the Company and not in any personal or individual capacity. Nothing contained herein shall be deemed to impose, or shall be construed as imposing, any personal liability on the undersigned officers in connection with the certifications set forth herein, except to the extent that any such certification is made fraudulently or in bad faith.
Section 11. Reliance.
The undersigned officers acknowledge that the Purchasers are relying on the accuracy and completeness of the certifications set forth in this Certificate in consummating the Initial Closing under the Note Purchase Agreement and in making the investment decision to purchase the Notes at the Initial Closing. The undersigned officers further acknowledge that, but for the delivery of this Certificate and the accuracy of the certifications contained herein, the Purchasers would not consummate the Initial Closing or purchase the Notes.
This Certificate may also be relied upon by Calderwood & Harkness LLP, counsel to the Purchasers, in connection with the preparation and delivery of the legal opinion of Calderwood & Harkness LLP, dated January 15, 2024, delivered to the Purchasers as a condition to the Initial Closing pursuant to Section 6.2(e) of the Note Purchase Agreement.
[Remainder of page intentionally left blank. Signature page follows.]
SIGNATURE PAGE TO OFFICER'S CERTIFICATE
Representations and Warranties Bring-Down Certificate
Skybridge Fintech Ltd.
IN WITNESS WHEREOF, the undersigned officers of the Company have executed and delivered this Officer's Certificate as of the date first set forth above.
SKYBRIDGE FINTECH LTD.
By: ________
Name: Arjun Mehta
Title: Chief Executive Officer and Co-Founder
Date: January 15, 2024
SKYBRIDGE FINTECH LTD.
By: ________
Name: David Lindstrom
Title: Chief Financial Officer
Date: January 15, 2024
Company Address: Skybridge Fintech Ltd. 1400 Market Street, Suite 2200 Wilmington, DE 19801
Attention: Arjun Mehta, Chief Executive Officer
Telephone: (302) 555-4800
Email: amehta@skybridgefintech.com

OFFICER'S CERTIFICATE

RECITALS

CERTIFICATIONS

SIGNATURE PAGE TO OFFICER'S CERTIFICATE

SKYBRIDGE FINTECH LTD.

SKYBRIDGE FINTECH LTD.

Record

Parties

Dates

Amounts