Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
This section describes
the material provisions of the Merger Agreement (as defined below) but does not purport to describe all of the terms thereof. The following
summary is qualified in its entirety by reference to the complete text of the Merger Agreement, a copy of which is
filed as Exhibit 2.1 to this Current Report on Form 8-K. Genesis’s shareholders and other interested parties are urged to
read such agreement in its entirety. Unless otherwise defined herein, the capitalized terms used below are defined in the Merger Agreement.
General Description of the Merger Agreement
On May 22, 2023, Genesis Growth
Tech Acquisition Corp., a Cayman Islands exempted company (together with its successors, “Genesis”), entered into an
Agreement and Plan of Merger (the “Merger Agreement”) with GGAC Merger Sub, Inc., a Florida corporation and newly formed
wholly-owned subsidiary of Genesis (“Merger Sub”), Eyal Perez, solely in his capacity as the representative from and
after the effective time of the Merger (as defined below) (the “Effective Time”) for the shareholders of Genesis (other
than the NextTrip Shareholders (as defined below)) (the “Purchaser Representative”), NextTrip Holdings, Inc., a Florida
corporation (“NextTrip”), and William Kerby, solely in his capacity as the representative from and after the Effective
Time for NextTrip’s Shareholders (the “Seller Representative”).
Pursuant to the Merger Agreement,
subject to the terms and conditions set forth therein, (i) upon the consummation of the transactions contemplated by the Merger Agreement
(the “Closing”), Merger Sub will merge with and into NextTrip (the “Merger” and, together with the
other transactions contemplated by the Merger Agreement, the “Transactions”), with NextTrip continuing as the surviving
corporation in the Merger and a wholly-owned subsidiary of Genesis. In the Merger, (i) all shares of NextTrip capital stock (together,
“NextTrip Stock”) issued and outstanding immediately prior to the Effective Time will be converted into the right to
receive the Merger Consideration (as defined below); and (ii) each outstanding NextTrip security convertible into NextTrip Stock, if not
exercised or converted prior to the Effective Time, will be cancelled, retired and terminated and cease to represent a right to acquire,
be exchanged for or convert into NextTrip Stock or Merger Consideration (as defined below).
The Merger Agreement also
provides that, prior to the Effective Time, Genesis shall convert out of the Cayman Islands and into the State of Delaware so as to re-domicile
as and become a Delaware corporation (the “Conversion”). At the Closing, Genesis will change its name to “NextTrip,
Inc.”.
Merger Consideration
The aggregate merger consideration
to be paid pursuant to the Merger Agreement to holders of NextTrip Stock as of immediately prior to the Effective Time (the “NextTrip
Shareholders”) will be an amount equal to $150,000,000, subject to adjustments for NextTrip’s closing debt, net of cash
(the “Merger Consideration”). The Merger Consideration to be paid to the NextTrip Shareholders will be paid solely
by the delivery of new shares of Genesis common stock; no cash consideration will be paid.
The Merger Consideration will
be allocated, on a pro rata basis, among the holders of NextTrip’s common stock as of the Closing date, based on the number of shares
of NextTrip common stock owned by such shareholders on such date.
Representations and Warranties
The Merger Agreement contains
a number of representations and warranties by each of Genesis, Merger Sub and NextTrip as of the date of the Merger Agreement and as of
the date of the Closing. Many of the representations and warranties are qualified by materiality or Material Adverse Effect. “Material
Adverse Effect,” as used in the Merger Agreement, means with respect to any specified person, 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, prospects or condition (financial or otherwise) of such person 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 Merger 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 Merger Agreement or in information provided pursuant to certain disclosure schedules to the Merger Agreement, which disclosure
schedules shall not be publicly disclosed. The representations and warranties made by Genesis and NextTrip are customary for transactions
similar to the Transactions.
No Survival
The representations and warranties
of the parties contained in the Merger Agreement terminate as of, and do not survive, the Closing, and there are no indemnification rights
for another party’s breach thereof. The covenants and agreements of the parties contained in the Merger Agreement do not survive
the Closing, except those covenants and agreements to be performed after the Closing, which covenants and agreements will survive until
fully performed.
Covenants of the Parties
Each party agreed in the Merger
Agreement to use its commercially reasonable efforts to effect the Closing. The Merger Agreement also contains certain customary covenants
by each of the parties during the period between the signing of the Merger Agreement and the earlier of the Closing or the termination
of the Merger Agreement in accordance with its terms (the “Interim Period”), including with respect to (1) the provision
of access to their properties, books and personnel; (2) the operation of their respective businesses in the ordinary course of business;
(3) provision of financial statements by NextTrip; (4) Genesis’s public filings; (5) no insider trading; (6) notifications of certain
breaches, consent requirements or other matters; (7) efforts to consummate the Closing and obtain third party and regulatory approvals;
(8) tax matters; (9) further assurances; (10) public announcements and (11) confidentiality. Each party also agreed during the Interim
Period not to solicit or enter into any inquiry, proposal or offer, or any indication of interest in making an offer or proposal for an
alternative competing transactions, to notify the others as promptly as practicable in writing of the receipt of any inquiries, proposals
or offers, requests for information or requests relating to an alternative competing transaction or any requests for non-public information
relating to such transaction, and to keep the others informed of the status of any such inquiries, proposals, offers or requests for information.
There are also certain customary post-Closing covenants regarding (1) tax matters; (2) maintenance of books and records; (3) indemnification
of directors and officers; and (4) use of trust account proceeds.
The Merger Agreement and the
consummation of the Transactions contemplated thereby requires the approval of both Genesis’s shareholders and NextTrip’s
shareholders. Genesis agreed, as promptly as practicable after the date of the Merger Agreement, to prepare, with reasonable assistance
from NextTrip, and file with the U.S. Securities and Exchange Commission (the “SEC”), a registration statement on Form
S-4 (as may be amended from time to time, the “Registration Statement”) in connection with the registration under the
Securities Act of 1933, as amended (the “Securities Act”), of the issuance of the shares of Genesis common stock to
be issued to the NextTrip Shareholders as Merger Consideration and the registration of the common stock of Genesis upon Conversion, and
containing a proxy statement/prospectus for the purpose of Genesis soliciting proxies from the shareholders of Genesis to approve the
Merger Agreement, the Transactions contemplated thereby and related matters (the “Genesis Shareholder Approval”) at
a special meeting of Genesis’s shareholders (the “Genesis Special Meeting”) and providing such shareholders an
opportunity to participate in the redemption by Genesis of its public shareholders in connection with Genesis’s initial business
combination, as required by Genesis’s Organizational Documents and Genesis’s initial public offering prospectus (the “Redemption”).
NextTrip also agreed in the Merger Agreement to call a meeting of its shareholders and use its reasonable best efforts to solicit from
NextTrip Shareholders proxies in favor of the Merger Agreement and the Transactions and certain related matters (the “NextTrip
Shareholder Approval”), and to take all other actions necessary or advisable to secure such approvals.
The parties also agreed to
take all necessary action, so that effective at the Closing, the entire board of directors of Genesis (the “Post-Closing Board”)
will consist of seven individuals, four of whom shall be independent directors in accordance with Nasdaq requirements. Two of the members
of the Post-Closing Board will be individuals designated by Genesis prior to the Closing and five of the members of the Post-Closing Board
(at least four of whom shall be independent directors) will be designated by NextTrip prior to the Closing. At or prior to Closing, Genesis
will provide each of its director designees with a customary director indemnification agreement, in form and substance reasonably acceptable
to such director. The parties also agreed to take all action necessary, including causing Genesis’s executive officers to resign,
so that the individuals serving as the chief executive officer and chief financial officer, respectively, of Genesis immediately after
the Closing will be the same individuals as that of NextTrip immediately prior to the Closing.
Closing Conditions
The obligations of the parties
to complete the Closing are subject to various conditions, including the following mutual conditions of the parties unless waived:
| ● | receipt
of the Genesis Shareholder Approval; |
| ● | receipt
of the NextTrip Shareholder Approval; |
| ● | expiration
of any applicable waiting period under any antitrust laws; |
| ● | receipt
of requisite consents from governmental authorities to consummate the Transactions, and receipt of specified requisite consents from
other third parties to consummate the Transactions; |
| ● | the
absence of any law or order that would prohibit the consummation of the Merger or other transactions contemplated by the Merger Agreement; |
| ● | the
Conversion having been consummated; |
| ● | the
members of the Post-Closing Board shall have been elected or appointed as of the Closing; |
| ● | the
effectiveness of the Registration Statement; and |
| ● | The
shares of Genesis common stock to be issued as Merger Consideration shall have been approved for listing on the Nasdaq, including satisfaction
of Nasdaq’s 300 round lot stockholder requirement, subject only to the official notice of issuance, or alternatively if mutually
agreed by the Purchaser and the Company, such shares shall have been approved for listing on the NYSE. |
Unless waived by Genesis,
the obligations of Genesis and Merger Sub to consummate the Merger are subject to the satisfaction of additional conditions including
the following, in addition to customary certificates and other closing deliverables:
| ● | the
representations and warranties of NextTrip being true and correct as of the date of the Merger Agreement and as of the Closing (subject
to Material Adverse Effect); |
| ● | NextTrip
having performed in all material respects its obligations and complied in all material respects with its covenants and agreements under
the Merger Agreement required to be performed or complied with on or prior to the date of the Closing; |
| ● | absence
of any Material Adverse Effect with respect to NextTrip and its subsidiaries, taken as a whole, since the date of the Merger Agreement
which is continuing and uncured; |
| ● | Genesis
having received a copy of NextTrip’s charter certified by the Secretary of State of the State of Florida no more than ten business
days prior to the Closing date; |
| ● | Genesis
having received a Lock-Up Agreement for each NextTrip Shareholder, duly executed by such Shareholder, and each Lock-Up shall be in full
force and effect as of the Closing; and |
| ● | Genesis
shall have received evidence reasonably acceptable to Genesis that NextTrip shall have converted, terminated, extinguished and cancelled
in full any outstanding convertible securities or commitments therefor. |
Unless waived by NextTrip,
the obligations of NextTrip to consummate the Merger are subject to the satisfaction of additional conditions including the following:
| ● | the
representations and warranties of Genesis being true and correct as of the date of the Merger Agreement and as of the Closing (subject
to Material Adverse Effect); |
| ● | Genesis
having performed in all material respects its obligations and complied in all material respects with its covenants and agreements under
the Merger Agreement required to be performed or complied with on or prior to the date of the Closing; |
| ● | absence
of any Material Adverse Effect with respect to Genesis and its subsidiaries, taken as a whole, since the date of the Merger Agreement
which is continuing and uncured; |
| ● | NextTrip having received a Lock-Up Agreement executed by the
Sponsor with respect to the shares held by the Sponsor in a form reasonably satisfactory to NextTrip; and |
| ● | NextTrip
having received a copy of a Voting Agreement executed by the Sponsor with respect to the shares held by the Sponsor in a form reasonably
satisfactory to NextTrip. |
Termination
The Merger Agreement may be
terminated under certain customary and limited circumstances at any time prior to the Closing, including:
| ● | By
mutual written consent of Genesis and NextTrip; |
| ● | by
either Genesis or NextTrip if any of the conditions to Closing have not been satisfied or waived by September 29, 2023 (the “Outside
Date”), provided that Genesis shall have the right to extend the Outside Date if it obtains an extension of the
deadline by which it must complete its business combination (an “Extension”) for an additional period the shortest
of (i) three months, (ii) the period ending on the last day for Genesis to consummate a business combination after such Extension and
(iii) such period as determined by Genesis; |
| ● | by
either Genesis or NextTrip if a governmental authority of competent jurisdiction shall have issued an order or taken any other action
permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by the Merger Agreement, and such order or
other action has become final and non-appealable; |
| ● | by
either Genesis or NextTrip of the other party’s uncured breach (subject to certain materiality qualifiers); |
| ● | by
Genesis if there has been an event after the signing of the Merger Agreement that has had a Material Adverse Effect on NextTrip and its
subsidiaries taken as a whole that is continuing and uncured; |
| ● | by either Genesis or
NextTrip if the Genesis Special Meeting is held and the Genesis Shareholder Approval is not received; and |
| ● | by
either Genesis or NextTrip if a special meeting of NextTrip shareholders is held and the NextTrip Shareholder Approval is not received. |
If the Merger Agreement is
terminated, all further obligations of the parties under the Merger Agreement will terminate and will be of no further force and effect
(except that certain obligations related to public announcements, confidentiality, fees and expenses, termination, waiver of claims against
the trust, and certain general provisions 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 claims arising out of a willful breach of the Merger Agreement prior to such termination.
Trust Account Waiver
NextTrip
and the Seller Representative agreed that they and their affiliates will not have any right, title, interest or claim of any kind in or
to any monies in Genesis’s trust account held for its public shareholders, and agreed not to, and waived any right to, make any
claim against the trust account (including any distributions therefrom).
Purchaser Representative and Seller Representative
Eyal Perez, is serving as
the Purchaser Representative under the Merger Agreement, and in such capacity will represent the interests of Genesis’s shareholders
after the Closing (other than the NextTrip shareholders) with respect to certain matters under the Merger Agreement. William Kerby is
serving as the Seller Representative under the Merger Agreement, and in such capacity will represent the interests of the NextTrip shareholders
with respect to certain matters under the Merger Agreement, including with respect to the determination of any post-Closing adjustments
to the Merger Consideration.
Governing Law and Arbitration
The Merger Agreement is governed
by Delaware law and, subject to the required arbitration provisions, the parties are subject to exclusive jurisdiction of federal and
state courts located in the State of Delaware (and any appellate courts thereof). Any disputes under the Merger Agreement, other than
claims for injunctive or temporary equitable relief or enforcement of an arbitration award, will be subject to arbitration by the American
Arbitration Association, to be held in New York County, State of New York.
The foregoing description
of the Merger Agreement and the Transactions does not purport to be complete and is qualified in its entirety by the terms and conditions
of the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
The Merger Agreement contains
representations, warranties and covenants that the respective parties made to each other as of the date of such agreement or other specific
dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective
parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement.
The Merger Agreement has been filed to provide investors with information regarding its terms. It is not intended to provide any other
factual information about Genesis, NextTrip or any other party to the Merger Agreement. In particular, the representations, warranties,
covenants and agreements contained in the Merger Agreement, which were made only for purposes of such agreement and as of specific dates,
were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties
(including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the
Merger Agreement instead of establishing these matters as facts), 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. Investors should not rely on the
representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts
or condition of any party to the Merger Agreement. In addition, the representations, warranties, covenants and agreements and other terms
of the Merger 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 Merger Agreement, which subsequent information may or
may not be fully reflected in Genesis’s public disclosures.
Related Agreements
Voting Agreement
At or prior to Closing,
the Purchaser shall deliver a copy of a Voting Agreement executed by the Sponsor with respect to the shares held by the Sponsor, in a
form reasonably satisfactory to NextTrip.
Lock-Up Agreement
At
or prior to Closing, each NextTrip Shareholder will enter into a Lock-Up Agreement with Genesis and the Purchaser Representative in the
form reasonably acceptable to the Purchaser Representative and the Seller Representative (each, a “Lock-Up Agreement”),
which Lock-Up Agreements will become effective as of the Closing, provided that the Lock-Up Agreement shall not apply to the shares allocated
to satisfy the liquidation preference held by NextPlay Technologies, Inc., in respect of its interest in NextTrip Group, LLC, a NextTrip
Shareholder.
