Third Amendment to Forward Purchase Agreement, dated as of January 11, 2024, among NKGen and Meteora Capital Partners, LP and certain of its affiliates

Contract Categories: Business Finance - Purchase Agreements
EX-10.1 2 tm243211d1_ex10-1.htm EXHIBIT 10.1

Exhibit 10.1

 

FORWARD PURCHASE AGREEMENT Confirmation THIRD AMENDMENT

 

THIS FORWARD PURCHASE AGREEMENT CONFIRMATION THIRD AMENDMENT, dated as of January 11, 2024 (this “Amendment”), is entered into by and among (i) Meteora Capital Partners, LP (“MCP”) (ii) Meteora Select Trading Opportunities Master, LP (“MSTO”) and (iii) Meteora Strategic Capital, LLC (“MSC”) (with MCP, MSTO and MSC collectively as “Seller”), and (iv) NKGen Biotech, Inc., a Delaware corporation (“NKGN” and formerly known as Graf Acquisition Corp. IV, a Delaware corporation).

 

Reference is hereby made to the OTC Equity Prepaid Forward Transaction, dated as of September 22, 2023 (the “Confirmation”), the Forward Purchase Agreement Confirmation Amendment, dated as of December 26, 2023 and the Forward Purchase Agreement Confirmation Second Amendment, dated as of January 2, 2024 (as amended from time to time, collectively the “Prior Amendments”), by and among Seller, NKGN and NKGen Operating Biotech, Inc. (“Target” and formerly known as NKGen Biotech, Inc., a Delaware corporation and now a wholly-owned subsidiary of NKGN). Capitalized terms not defined herein shall have the meanings assigned to such terms in the Confirmation.

 

On September 29, 2023, NKGN and Target completed the Business Combination, and accordingly, the Seller delivered a Pricing Date Notice to commence the Transaction.

 

1.Amendment: The parties hereto agree to amend the Confirmation as follows:

 

a. The Section titled “Prepayment Shortfall” shall be deleted in its entirety and replaced with the following:

 

Prepayment Shortfall: An amount in USD equal to 0.50% of the product of (i) the Recycled Shares multiplied by (ii) the Initial Price (the “Initial Shortfall”); provided that Seller shall pay 0.50% of the product of (i) the Recycled Shares multiplied by (ii) the Initial Price of the Prepayment Shortfall to Counterparty on the Prepayment Date (which amount shall be netted from the Prepayment Amount) and, at the request of Counterparty, an additional Prepayment Shortfall of $500,000 in cash (the “Future Shortfall”), with such request being made by no later than 5:00pm EST on December 26, 2023, after which the option will expire and, at the request of Counterparty, an additional Prepayment Shortfall of $500,000 in cash (the “Second Future Shortfall”), with such request being made by no later than 5:00pm EST on January 2, 2024, after which the option will expire, and, at the request of Counterparty, an additional Prepayment Shortfall of $500,000 in cash (the “Third Future Shortfall”), with such request being made by no later than 5:00pm EST on January 11, 2024, after which the option will expire.

 

 

 

 

b. The Section titled “Prepayment Shortfall Consideration” shall be deleted in its entirety and replaced with the following:

 

Prepayment Shortfall Consideration: Seller in its sole discretion may sell Recycled Shares at any time following the Trade Date without payment by Seller of any Early Termination Obligation (as defined below) until such time as the proceeds from such sales equal 100% the Prepayment Shortfall, other than the Third Future Shortfall which shall be set at 120% of the Prepayment Shortfall (as set forth under Shortfall Sales below) (such sales, “Shortfall Sales,” and such Shares, “Shortfall Sale Shares”). A sale of Shares is only (a) a “Shortfall Sale,” subject to the terms and conditions herein applicable to Shortfall Sale Shares, when a Shortfall Sale Notice is delivered hereunder, and (b) an Optional Early Termination, subject to the terms and conditions herein applicable to Terminated Shares, when an OET Notice (as defined below) is delivered hereunder, in each case the delivery of such notice in the sole discretion of the Seller. For the avoidance of doubt and notwithstanding anything to the contrary herein, Seller shall not be liable for any Settlement Amount payment with respect to the Shortfall Sale Shares.

 

 

2.      Non-Reliance. Seller acknowledges and agrees that NKGN is in possession of non-public information about NKGN and its securities that has not been provided to Seller and that may or may not be material or superior to information available to Seller, and that Seller, in entering into this Amendment, has not relied and is not relying on any representations, warranties or other statements whatsoever, whether written or oral (from or by NKGN or any Person acting on their behalf) other than those expressly set out in this Amendment (or other related documents referred to herein) and that it will not have any right or remedy rising out of any representation, warranty or other statement not expressly set out in this Amendment or the Confirmation. Seller hereby waives any claim, or potential claim, it has or may have against NKGN and its officers and directors relating to NKGN’s possession of material non-public information.

 

3.      No Other Amendments. All other terms and conditions of the Confirmation and the Amendments shall remain in full force and effect and the Confirmation shall be read and construed as if the terms of this Amendment were included therein by way of addition or substitution, as the case may be.

 

4.      Execution in Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.

 

5.      Ratification. The terms and provisions set forth in this Amendment modify and supersede all inconsistent terms and provisions set forth in the Confirmation and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Confirmation are ratified and confirmed and continue in full force and effect. All parties hereby agree that the Confirmation and Prior Amendments, as amended by this Amendment, shall continue to be legal, valid, binding and enforceable in accordance with their terms.

 

6.      THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF).

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date first above written.

 

  METEORA STRATEGIC CAPITAL, LLC;
   
  METEORA SELECT TRADING OPPORTUNITIES MASTER, LP; AND
   
  METEORA CAPITAL PARTNERS, LP
   
   
  By: /s/ Vik Mittal
    Name: Vik Mittal
    Title: Managing Member
   
   
  NKGEN BIOTECH, INC.
   
   
  By: /s/ Paul Y. Song
    Name: Paul Y. Song
    Title: Chief Executive Officer