UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934
| Filed by the Registrant |
|
☒ |
| Filed by a party other than the Registrant |
|
☐ |
Check the appropriate box:
| ☐ |
|
Preliminary Proxy Statement |
| ☐ |
|
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| ☐ |
|
Definitive Proxy Statement |
| ☒ |
|
Definitive Additional Materials |
| ☐ |
|
Soliciting Material under §240.14a-12 |
Fusion Acquisition
Corp. II
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement,
if other than the Registrant)
Payment of Filing Fee (Check all boxes that
apply):
| ☒ |
|
No fee required. |
| ☐ |
|
Fee paid previously with preliminary materials |
| ☐ |
|
Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11 |
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): August 25, 2023
FUSION ACQUISITION CORP. II
(Exact
name of registrant as specified in its charter)
| Delaware |
|
001-40120 |
|
86-1352058 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
667 Madison Avenue, 5th Floor
New York, New York |
|
10065 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (212) 763-0169
Not
Applicable
(Former name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
| Units, each consisting of one share of Class A common stock and one-third of one redeemable warrant |
|
FSNB.U |
|
New York Stock Exchange |
| Class A common stock, par value $0.0001 per share |
|
FSNB |
|
New York Stock Exchange |
| Redeemable warrants, each whole warrant exercisable for one share of Class A common stock, each at an exercise price of $11.50 per share |
|
FSNB WS |
|
None |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01 Entry into Material Definitive Agreement.
As
previously disclosed, Fusion Acquisition Corp. II (the “Company” or “Fusion”) intends to hold a special meeting
of its stockholders (the “Extension Meeting”) to approve, among other things, amendments to the Company’s second amended
and restated certificate of incorporation (the “Charter”) to extend the time it has to complete an initial business combination
(the “Extension”) and to eliminate the limitation that the Company will not complete an initial business combination if doing
so would cause it to have net tangible assets of less than $5,000,001.
On
August 25, 2023, Fusion Acquisition Corp. II (the “Company” or “Fusion”) and Fusion Sponsor II LLC (the “Sponsor”)
entered into a non-redemption agreement (the “Non-Redemption Agreement”) with an unaffiliated third party investor (the “Investor”),
pursuant to which the Investor has, in connection with the Extension Meeting, agreed not to redeem, or to reverse and revoke any prior
redemption election with respect to 222,000 shares of Class A common stock, par value $0.0001 per share, of the Company (the “Non-Redeemed
Shares”). Pursuant to the Non-Redemption Agreement, the Sponsor has agreed to transfer to the Investor 55,500 shares of Class B
common stock, par value $0.0001 per share, of the Company (the “Founder Shares”), in connection with the consummation of
the Company’s initial business combination.
The Company and the Sponsor
may enter into similar, additional non-redemption agreements with other parties in connection with the Extension Meeting. The Non-Redemption Agreements are not expected to increase the likelihood that
the Extension is approved by stockholders at the Extension Meeting but will increase the amount of funds that remain in the
Company’s trust account following the Extension Meeting.
The
foregoing summary of the Non-Redemption Agreement does not purport to be complete and is qualified in its entirety by reference to the
form of Non-Redemption Agreement that is filed as Exhibit 10.1 hereto and incorporated herein by reference.
Additional
Information and Where to Find It
The
Company has filed a definitive proxy statement (the “Extension Proxy”) to be used at the Extension Meeting. The Company has
mailed the Extension Proxy to its stockholders of record as of August 14, 2023. Investors and security holders of the Company are advised
to read the Extension Proxy and any supplements or amendments thereto, because these documents will contain important information about
the Company and the Extension. Stockholders are able to obtain copies of the Extension Proxy and the other documents filed by the Company
with the Securities and Exchange Commission (the “SEC”) in connection with the Extension, without charge, at the SEC’s
website at www.sec.gov or by directing a request to: Fusion Acquisition Corp. II, 667 Madison Ave, 5th Floor, New York, NY 10065.
Participants
in the Solicitation
The
Company and its directors and executive officers may be considered participants in the solicitation of proxies with respect to the Extension
under the rules of the SEC. Information about the directors and executive officers of the Company and a description of their interests
in the Company are set forth in the Extension Proxy. These documents can be obtained free of charge from the sources indicated above.
Non-Solicitation
This
Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent, or authorization with respect to any securities
or in respect of any business combination. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation
of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation,
or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities
shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, or an exemption therefrom.
Forward-Looking
Statements
This
Current Report on Form 8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions
of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words
such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,”
“expect,” “anticipate,” “believe,” “seek,” “target”, “may”, “intend”,
“predict”, “should”, “would”, “predict”, “potential”, “seem”,
“future”, “outlook” or other similar expressions (or negative versions of such words or expressions) that predict
or indicate future events or trends or that are not statements of historical matters. These forward-looking statements are not guarantees
of future performance, conditions or results, and involve a number of known and unknown risks, uncertainties, assumptions and other important
factors, many of which are outside Fusion’s control, that could cause actual results or outcomes to differ materially from those
discussed in the forward-looking statements. Important factors, among others, that may affect actual results or outcomes include: Fusion’s
ability to enter into a definitive agreement with respect to a proposed business combination within the time provided in Fusion’s
amended and restated memorandum and articles of association; the ability of Fusion to obtain the financing necessary to consummate a
potential business combination; the failure to realize the anticipated benefits of a proposed business combination, including as a result
of a delay in consummating a proposed business combination; the risk that approval of Fusion’s stockholders for the Extension is
not obtained; the level of redemptions made by the Fusion’s stockholders in connection with the Extension and a proposed business
combination and its impact on the amount of funds available in Fusion’s trust account to complete an initial business combination;
the ability of Fusion and Fusion’s Sponsor to enter into additional non-redemption agreements in connection with the Extension
Meeting; and those factors discussed in Fusion’s Annual Report on Form 10-K for the year ended December 31, 2021 and other documents
of the Company filed, or to be filed, by Fusion with the SEC, including the Extension Proxy. Fusion does not undertake any obligation
to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required
by law.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
| |
FUSION
ACQUISITION CORP. II |
| |
|
|
| |
By: |
/s/
John James |
| |
|
Name: |
John
James |
| |
|
Title: |
Chief
Executive Officer |
| |
|
|
| Dated:
August 25, 2023 |
|
|
Exhibit 10.1
NON-REDEMPTION AGREEMENT AND ASSIGNMENT OF ECONOMIC INTEREST
This Non-Redemption Agreement
and Assignment of Economic Interest (this “Agreement”) is entered as of [●], 2023 by and among Fusion Acquisition
Corp. II, a Delaware corporation (“SPAC”), Fusion Sponsor II LLC, a Delaware limited liability company (the “Sponsor”),
and the undersigned investors (collectively, the “Investor”).
RECITALS
WHEREAS, the Sponsor
currently holds shares of Class B common stock, par value $0.0001 per share, of SPAC initially purchased in a private placement prior
to SPAC’s initial public offering (the “Founder Shares”);
WHEREAS, SPAC expects
to hold a special meeting of its stockholders (the “Meeting”) for the purpose of approving, among other things, an
amendment to SPAC’s Second Amended and Restated Certificate of Incorporation (the “Charter”) to extend the date
by which SPAC must consummate an initial business combination (the “Initial Business Combination”) by six additional
months until March 2, 2024 (the “Extension”);
WHEREAS, the
Charter provides that a stockholder of SPAC may redeem its Shares of Class A common stock, par value $0.0001 per share, initially sold
as part of the units in SPAC’s initial public offering (whether they were purchased in SPAC’s initial public offering or thereafter
in the open market) (the “Public Shares” and together with the Founder Shares, the “Shares”) in
connection with the Charter amendment, on the terms set forth in the Charter (“Redemption Rights”);
WHEREAS, subject to
the terms and conditions of this Agreement, the Sponsor desires to transfer to Investor, and Investor desires to acquire from the Sponsor,
that number of Founder Shares set forth opposite such Investor’s name on Exhibit A hereto (the “Assigned Securities”),
to be transferred to Investor in connection with SPAC’s completion of its Initial Business Combination, and, prior to the transfer
of the Assigned Securities to Investor, the Sponsor desires to assign the economic benefits of the Assigned Securities to Investor.
NOW THEREFORE,
in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Investor and the Sponsor hereby agree as follows:
| 1.1. | Upon the terms and subject to the conditions of this Agreement,
if (a) as of 5:30 PM, New York time, on the date of the Meeting, Investor holds the Investor Shares (as defined below), (b) Investor
does not exercise (or exercised and validly rescinds) its Redemption Rights with respect to such Investor Shares in connection with the
Meeting, (c) the Extension is approved at the Meeting and the Company meets the continued or initial listing requirements to be listed
on the New York Stock Exchange following the Meeting, and (d) the Company implements the Extension, then the Sponsor hereby agrees to
assign to Investor for no additional consideration the Assigned Securities set forth on Exhibit A, and the Sponsor further agrees
to assign to Investor the Economic Interest (as defined below) associated with the Assigned Securities. “Investor Shares”
shall mean an amount of the Public Shares presently held by Investor equal to the lesser of (i) [●] Public Shares, and (ii) 9.9%
of the Public Shares that are not to be redeemed, including those Public Shares subject to non-redemption agreements with other SPAC
stockholders similar to this Agreement on or about the date of the Meeting. The Sponsor and SPAC agree to provide Investor with the final
number of Investor Shares subject to this Agreement no later than 9:30 a.m. Eastern on the first business day following the date of the
Meeting (and in all cases a sufficient amount of time to allow the Investor to reverse any exercise of Redemption Rights with regard
to any Investor Shares), provided, that such amount shall not exceed [●] Public Shares. |
| 1.2. | The Sponsor and Investor hereby agree that the assignment
of the Assigned Securities hereunder shall be subject to the conditions that, and shall not be effected unless and until, (i) the Initial
Business Combination is consummated; and (ii) Investor (or its Permitted Transferees (as such term is defined in that certain Letter
Agreement, dated February 25, 2021, by and among SPAC, the Sponsor and SPAC’s officers and directors (as it exists on the date
hereof, the “Letter Agreement”) executes the Joinder (as defined in Section 1.8). |
Upon the satisfaction
of the foregoing conditions, as applicable, the Sponsor shall promptly transfer (and no later than two (2) business days following the
closing of the Initial Business Combination) the Assigned Securities to Investor (or its Permitted Transferees) free and clear of any
liens or other encumbrances, other than pursuant to the Letter Agreement, restrictions on transfer imposed by the securities laws, and
any successor or similar agreement entered into in connection with the Initial Business Combination (which shall be no less favorable
or more restrictive than what is agreed to by the Sponsor). The Sponsor and SPAC covenant and agree to facilitate such transfer to Investor
(or its Permitted Transferees) in accordance with the foregoing.
| 1.3. | Adjustment to Share Amounts. If at any time the number
of outstanding Founder Shares is increased or decreased by a consolidation, combination, subdivision or reclassification of the Shares
of SPAC or other similar event, then, as of the effective date of such consolidation, combination, subdivision, reclassification or similar
event, all share numbers referenced in this Agreement shall be adjusted in proportion to such increase or decrease in the Shares of SPAC. |
| 1.4. | Merger or Reorganization, etc. If prior to the assignment
of the Assigned Shares to Investor there shall occur any reorganization, recapitalization, reclassification, consolidation or merger
involving SPAC in which its Shares are converted into or exchanged for securities, cash or other property, then, following any such reorganization,
recapitalization, reclassification, consolidation or merger, in lieu of Shares of SPAC, the Sponsor shall transfer, with respect to each
Founder Share to be transferred hereunder, upon the Sponsor’s receipt thereof, the kind and amount of securities, cash or other
property into which such Assigned Securities converted or exchanged. |
| 1.5. | Forfeitures, Transfers, etc. Investor shall not be
subject to forfeiture, surrender, claw-back, transfers, disposals, exchanges or earn-outs for any reason on the Assigned Securities.
Investor acknowledges that, pursuant to the Amended and Restated Limited Liability Company Agreement of the Sponsor (as it exists on
the date hereof, the “Sponsor LLC Agreement”), prior to, or at the time of, the Initial Business Combination, the
managers of the Sponsor have the authority to cause the Sponsor to subject the Founder Shares to earn-outs, forfeitures, transfers or
other restrictions, or amend the terms under which the Founder Shares were issued or any restrictions or other provisions relating to
the Founder Shares set forth in the instruments establishing the same (including voting in favor of any such amendment) or enter into
any other arrangements with respect to the Founder Shares, and that the managers are authorized to effectuate such earn-outs, forfeitures,
transfers, restrictions, amendments or arrangements, including arrangements relating to the relaxation or early release of restrictions,
in such amounts and pursuant to such terms as they determine in their sole and absolute discretion for any reason. Sponsor acknowledges
and agrees that any such earn-outs, forfeitures, transfers, restrictions, amendments or arrangements shall apply only to the Founder
Shares other than the Assigned Securities and the terms and conditions applicable to the Assigned Securities shall not be changed or
reduced as a result of any such earn-outs, forfeitures, transfers, restrictions, amendments or arrangements. |
| 1.6. | Delivery of Shares; Other Documents. At the time of
the transfer of Assigned Securities hereunder, the Sponsor shall deliver the Assigned Securities to Investor by transfer of book-entry
shares effected through SPAC’s transfer agent. The parties to this Agreement agree to execute, acknowledge and deliver such further
instruments and to do all such other acts, as may be necessary or appropriate to carry out the purposes and intent of this Agreement. |
| 1.7. | Assignment of Registration Rights. Concurrent with
the transfer of Assigned Securities to Investor under this Agreement, the Sponsor hereby assigns all of its rights, duties and obligations
to Investor with respect to the Assigned Securities under that certain Registration Rights Agreement, dated February 25, 2021, by and
among SPAC and the Sponsor (as it exists on the date of the Agreement, the “Registration Rights Agreement”), and hereby
represents and confirms to Investor that, upon Investor’s receipt of the Assigned Securities, (i) Investor shall be a “Holder”
under the Registration Rights Agreement and (ii) the Assigned Securities shall be “Registrable Securities” under the Registration
Rights Agreement. This Agreement constitutes the Sponsor’s written notice to SPAC of such assignment in accordance with the Registration
Rights Agreement (if required). Investor shall execute the Joinder (as defined in Section 1.8), pursuant to which, Investor will be bound
by the terms and provisions of the Registration Rights Agreement as a “Holder” thereunder with respect to the Assigned Securities
(upon acquisition thereof) as “Registrable Securities” thereunder. |
| 1.8. | Joinder to Letter Agreement and Registration Rights Agreement.
In connection with the transfer of the Assigned Securities to Investor, Investor shall execute a joinder to the Letter Agreement and
the Registration Rights Agreement in substantially the form attached here to as Exhibit B (the “Joinder”) pursuant
to which Investor shall agree with SPAC to be bound solely by Section 7 of the Letter Agreement solely with respect to the Assigned Securities
and by the terms and provisions of the Registration Rights Agreement as a “Holder” thereunder with respect to the Assigned
Securities (upon acquisition thereof) as “Registrable Securities” thereunder. Notwithstanding anything in this Agreement
or the Joinder to the contrary, Investor shall be released with respect to the Assigned Securities from any transfer or lock-up restrictions
under the Letter Agreement or the Registrations Rights Agreement to the same extent as any other holders, including the Sponsor, is released
from such restrictions with respect to its remaining Founder Shares. |
| 1.9. | Termination. This Agreement and each of the obligations
of the undersigned shall terminate on the earlier of (a) the failure of SPAC’s stockholders to approve the Extension at the Meeting,
(b) SPAC’s abandonment of the Extension prior to the implementation thereof, (c) the fulfillment of all obligations of parties
hereto, (d) the liquidation or dissolution of SPAC, (e) the mutual written agreement of the parties hereto; or (f) if Investor exercises
its Redemption Rights with respect to any Investor Shares in connection with the Meeting and such Investor Shares are actually redeemed
in connection with the Meeting. Notwithstanding any provision in this Agreement to the contrary, the Sponsor’s obligation to transfer
the Assigned Securities to Investor shall be conditioned on (i) the satisfaction of the conditions set forth in Section 1.2 and (ii)
such Investor Shares not being redeemed in connection with the Meeting. |
| 2. | Assignment of Economic Interest. |
| 2.1. | Upon satisfaction of the conditions set forth in Section
1.1, the Sponsor hereby assigns to Investor all of its economic right, title and interest in and to that number of Assigned Securities
set forth on Exhibit A (the “Economic Interest”), subject to adjustment as set forth in Section 2.2. The Economic
Interest represents the Sponsor’s right to receive dividends and other distributions made with respect to that number of Assigned
Securities set forth on Exhibit A represented by the Founder Shares held directly by the Sponsor. |
| 2.2. | If at any time the number of outstanding Founder Shares is
increased or decreased by a consolidation, combination, split or reclassification or other similar event, then, as of the effective date
of such consolidation, combination, split, reclassification or similar event, the number of shares underlying the Economic Interest shall
be adjusted in proportion to such increase or decrease in outstanding Founder Shares. The foregoing shall not apply to (i) any increase
or decrease in the number of authorized Founder Shares or (ii) a reclassification of the capital stock of SPAC, in each case in connection
with the closing of the Initial Business Combination. |
| 2.3. | Investor acknowledges and agrees that it has no right to
vote on matters of the Sponsor as a result of the Assigned Securities or Economic Interest, or to vote with respect to any Assigned Securities,
and it has no right to vote Assigned Securities prior to transfer of any such shares to Investor pursuant to this Agreement. |
| 2.4. | Investor acknowledges and agrees that if it has a right pursuant
to its Economic Interest to receive any dividends or other distributions paid in Shares or other non-cash property, the Sponsor shall
transfer all of its right, title and interest in such dividends or distributions concurrently with the transfer of the Assigned Securities
to such Investor pursuant to Section 1. |
| 2.5. | If the conditions to the transfer of the Founder Shares in
Section 1 are not satisfied with respect to any Founder Shares, then Investor shall automatically assign its Economic Interests in such
Founder Shares back to the Sponsor, for no consideration. |
| 3. | Representations and Warranties of Investor. Investor
represents and warrants to, and agrees with, the Sponsor that: |
| 3.1. | No Government Recommendation or Approval. Investor
understands that no federal or state agency has passed upon or made any recommendation or endorsement of the offering of the Assigned
Securities. |
| 3.2. | Accredited Investor. Investor is an institutional
“accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended,
(the “Securities Act”) or a “qualified institutional buyer” as defined in Rule 144A under the Securities
Act, and acknowledges that the offer and sale contemplated hereby are being made in reliance, among other things, on a private placement
exemption to “accredited investors” under the Securities Act and similar exemptions under state law. |
| 3.3. | Intent. Investor is acquiring the Assigned Securities solely for investment purposes, for
such Investor’s own account (and/or for the account or benefit of its members or affiliates, as permitted), and not with a
view to the distribution thereof in violation of the Securities Act and Investor has no present arrangement to sell Assigned
Securities to or through any person or entity except as may be permitted hereunder. |
| 3.4. | Restrictions on Transfer; Trust Account; Redemption Rights. |
| 3.4.1. | Investor acknowledges and agrees that, prior to their transfer
hereunder, the Assigned Securities are, and following any transfer to Investor may continue to be, subject to the transfer restrictions
as set forth in Section 7 of the Letter Agreement. |
| 3.4.2. | Investor acknowledges and agrees that the Assigned Securities
are not entitled to, and have no right, interest or claim of any kind in or to, any monies held in the trust account into which the proceeds
of SPAC’s initial public offering were deposited (the “Trust Account”) or distributed as a result of any liquidation
of the Trust Account. |
| 3.4.3. | Investor, solely for the benefit of and, notwithstanding anything
else herein, enforceable only by SPAC, agrees to waive any right that it may have to elect to have SPAC redeem any Investor Shares and
agrees not to redeem or otherwise exercise any right to redeem, the Investor Shares and agrees to reverse and revoke any prior redemption
elections made with respect to the Investor Shares in connection with the Extension. For the avoidance of doubt, nothing in this Agreement
is intended to restrict or prohibit Investor’s ability to redeem any Public Shares other than the Investor Shares, or to trade
or redeem any Public Shares (other than the Investor Shares) in its discretion and at any time or trade or redeem any Investor Shares
in its discretion and at any time after the date of the Meeting. |
| 3.4.4. | Investor acknowledges and understands that (a) the Assigned
Securities are being offered in a transaction not involving a public offering in the United States within the meaning of the Securities
Act and have not been registered under the Securities Act and, if in the future Investor decides to offer, resell, pledge or otherwise
transfer Assigned Securities, such Assigned Securities may be offered, resold, pledged or otherwise transferred only (A) pursuant
to an effective registration statement filed under the Securities Act, (B) pursuant to an exemption from registration under Rule
144 promulgated under the Securities Act, if available, or (C) pursuant to any other available exemption from the registration requirements
of the Securities Act, and in each case in accordance with any applicable securities laws of any state or any other jurisdiction and
(b) the Assigned Securities may be subject to legends and share transfer instructions consistent with the foregoing. Investor
agrees that, if any transfer of the Assigned Securities or any interest therein is proposed to be made, as a condition precedent to any
such transfer, Investor may be required to deliver to SPAC an opinion of counsel satisfactory to SPAC that registration is not required
with respect to the Assigned Securities to be transferred. Absent registration or another available exemption from registration, Investor
agrees it will not transfer the Assigned Securities. |
| 3.5. | Sophisticated Investor. Investor is sophisticated
in business and financial matters and able to evaluate the risks and benefits of the investment in the Assigned Securities. |
| 3.6. | Risk of Loss. Investor is aware that an investment
in the Assigned Securities is highly speculative and subject to substantial risks. Investor is cognizant of and understands the risks
related to the acquisition of the Assigned Securities, including those restrictions described or provided for in this Agreement, the
Sponsor LLC Agreement and the Letter Agreement pertaining to transferability. Investor is able to bear the economic risk of its
investment in the Assigned Securities for an indefinite period of time and able to sustain a complete loss of such investment. |
| 3.7. | Independent Investigation. Investor has
relied upon an independent investigation of SPAC and has not relied upon any information or representations made by any third parties
or upon any oral or written representations or assurances, express or implied, from the Sponsor or any representatives or agents of the
Sponsor, other than as set forth in this Agreement. Investor is familiar with the business, operations and financial condition of SPAC
and has had an opportunity to ask questions of, and receive answers from SPAC’s management concerning SPAC and the terms and conditions
of the proposed sale of the Assigned Securities and has had full access to such other information concerning SPAC as Investor has requested.
Investor confirms that all documents that it has requested have been made available and that Investor has been supplied with all of the
additional information concerning this investment which Investor has requested. |
| 3.8. | Organization and Authority. If an entity,
Investor is duly organized and existing under the laws of the jurisdiction in which it was organized and it possesses all requisite power
and authority to acquire the Assigned Securities, enter into this Agreement and perform all the obligations required to be performed
by Investor hereunder. |
| 3.9. | Non-U.S. Investor. If Investor is not a United States
person (as defined by Section 7701(a)(30) of the U.S. Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder
(collectively, the “Code”)), Investor hereby represents that it has satisfied itself as to the full observance of
the laws of its jurisdiction in connection with any invitation to subscribe for the Assigned Securities or any use of this Agreement,
including (i) the legal requirements within its jurisdiction for the acquisition of the Assigned Securities, (ii) any foreign exchange
restrictions applicable to such acquisition, (iii) any governmental or other consents that may need to be obtained, and (iv) the income
tax and other tax consequences, if any, that may be relevant to the acquisition, holding, redemption, sale, or transfer of the Assigned
Securities. Investor’s subscription and payment for and continued beneficial ownership of the Assigned Securities will not violate
any applicable securities or other laws of Investor’s jurisdiction. |
| 3.10. | Authority. This Agreement has been validly authorized,
executed and delivered by Investor and is a valid and binding agreement enforceable against Investor in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization, or similar
laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by equitable principles of general
application and except as enforcement of rights to indemnity and contribution may be limited by federal and state securities laws or
principles of public policy. |
| 3.11. | No Conflicts. The execution, delivery and performance
of this Agreement and the consummation by Investor of the transactions contemplated hereby do not violate, conflict with or constitute
a default under (i) Investor’s organizational documents, (ii) any agreement or instrument to which Investor is a party or (iii)
any law, statute, rule or regulation to which Investor is subject, or any order, judgment or decree to which Investor is subject, in
the case of clauses (ii) and (iii), that would reasonably be expected to prevent Investor from fulfilling its obligations under this
Agreement. |
| 3.12. | No Advice from Sponsor. Investor has had the opportunity
to review this Agreement and the transactions contemplated by this Agreement and the form of Letter Agreement with Investor’s own
legal counsel and investment and tax advisors. Except for any statements or representations of the Sponsor explicitly made
in this Agreement, Investor is relying solely on such counsel and advisors and not on any statements or representations, express or implied,
of the Sponsor or any of its representatives or agents for any reason whatsoever, including without limitation for legal, tax or investment
advice, with respect to this investment, the Sponsor, SPAC, the Assigned Securities, the transactions contemplated by this Agreement
or the securities laws of any jurisdiction. |
| 3.13. | Reliance on Representations and Warranties. Investor
understands that the Assigned Securities are being offered and sold to Investor in reliance on exemptions from the registration requirements
under the Securities Act, and analogous provisions in the laws and regulations of various states, and that the Sponsor is relying upon
the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of Investor set forth in this
Agreement in order to determine the applicability of such provisions. |
| 3.14. | No General Solicitation. Investor is not
subscribing for any Assigned Securities as a result of or subsequent to any general solicitation or general advertising, including but
not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast
over television or radio or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. |
| 3.15. | Brokers. No broker, finder or intermediary has
been paid or is entitled to a fee or commission from or by Investor in connection with the acquisition of the Assigned Securities nor
is Investor entitled to or will accept any such fee or commission. |
| 4. | Representations and Warranties of Sponsor. The Sponsor
represents and warrants to, and agrees with, the Investor that: |
| 4.1. | Power and Authority. The Sponsor is a limited
liability company duly formed and validly existing and in good standing as a limited liability company under the laws of Delaware and
possesses all requisite limited liability company power and authority to enter into this Agreement and to perform all of the obligations
required to be performed by the Sponsor hereunder, including the assignment, sale and transfer the Assigned Securities and the assignment
of the Economic Interest. |
| 4.2. | Authority. All corporate action on the part of the
Sponsor and its officers, directors and members necessary for the authorization, execution and delivery of this Agreement and the performance
of all obligations of the Sponsor required pursuant hereto has been taken. This Agreement has been duly executed and delivered by the
Sponsor and (assuming due authorization, execution and delivery by Investor) constitutes the Sponsor’s legal, valid and binding
obligation, enforceable against the Sponsor in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization, or similar laws relating to, or affecting generally the enforcement
of, creditors’ rights and remedies or by equitable principles of general application and except as enforcement of rights to indemnity
and contribution may be limited by federal and state securities laws or principles of public policy. |
| 4.3. | Title to Securities. The Sponsor is the record and
beneficial owner of, and has good and marketable title to, the Assigned Securities and will, immediately prior to the transfer of the
Assigned Securities to Investor, be the record and beneficial owner of the Assigned Securities, in each case, free and clear of all liens,
pledges, security interests, charges, claims, encumbrances, agreements, options, voting trusts, proxies and other arrangements or restrictions
of any kind (other than transfer restrictions and other terms and conditions that apply to the Founder Shares generally and applicable
securities laws). The Assigned Securities to be transferred, when transferred to Investor as provided herein, will be free and clear
of all liens, pledges, security interests, charges, claims, encumbrances, agreements, options, voting trusts, proxies and other
arrangements or restrictions of any kind (other than transfer restrictions and other terms and conditions that apply to the Founder Shares
generally, under the Letter Agreement and applicable securities laws). |
| 4.4. | No Conflicts. The execution, delivery and performance
of this Agreement and the consummation by the Sponsor of the transactions contemplated hereby do not violate, conflict with or constitute
a default under (i) the certificate of formation or the Sponsor LLC Agreement, (ii) any agreement or instrument to which the Sponsor
is a party or by which it is bound (including the Letter Agreement and the Sponsor LLC Agreement) or (iii) any law, statute, rule or
regulation to which the Sponsor is subject or any order, judgment or decree to which the Sponsor is subject, except in the case of clauses
(ii) and (iii) above, for such conflicts, defaults or violations which would not reasonably be expected to prevent the Sponsor from fulfilling
its obligations under this Agreement. The Sponsor is not required under federal, state or local law, rule or regulation to obtain any
consent, authorization or order of, or make any filing or registration with, any court or governmental agency or self-regulatory entity
in order for it to perform any of its obligations under this Agreement, including the transfer of the Assigned Securities and assignment
of the Economic Interest in accordance with the terms hereof. |
| 4.5. | No General Solicitation. The Sponsor has
not offered the Assigned Securities by means of any general solicitation or general advertising within the meaning of Regulation D of
the Securities Act, including but not limited to any advertisement, article, notice or other communication published in any newspaper,
magazine, or similar media or broadcast over television or radio or any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. |
| 4.6. | Brokers. No broker, finder or intermediary has
been paid or is entitled to a fee or commission from or by the Sponsor in connection with the sale of the Assigned Securities nor is
the Sponsor entitled to or will accept any such fee or commission. |
| 4.7. | Transfer Restrictions. Until termination of this Agreement,
the Sponsor shall not transfer any of its Founder Shares representing the economic benefit of the Assigned Securities. |
| 4.8. | Reliance on Representations and Warranties. The
Sponsor understands and acknowledges that Investor is relying upon the truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of the Sponsor set forth in this Agreement. |
| 5. | Trust Account. Until the earlier of (a) the consummation
of SPAC’s initial business combination; (b) the liquidation of the Trust Account; and (c) 30 months from consummation of SPAC’s
initial public offering or such later time as the stockholders of SPAC may approve in accordance with the Charter, SPAC will maintain
the investment of funds held in the Trust Account in interest-bearing United States government securities within the meaning of Section 2(a)(16)
of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the conditions
of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended, which
invest only in direct U.S. government treasury obligations, or maintain such funds in cash in an interest-bearing demand deposit account
at a bank, as determined by SPAC. SPAC further confirms that it will not utilize any funds from its Trust Account to pay any potential
excise taxes that may become due pursuant to the Inflation Reduction Act of 2022 upon a redemption of the Public Shares, including, but
not limited to, in connection with a liquidation of SPAC if it does not effect a business combination prior to its termination date. |
| 6. | Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York, without giving effect to its principles or rules of conflict of laws
to the extent such principles or rules would require or permit the application of the laws of another jurisdiction. The parties hereto
hereby waive any right to a jury trial in connection with any litigation pursuant to this Agreement and the transactions contemplated
hereby. With respect to any suit, action or proceeding relating to the transactions contemplated hereby, the undersigned irrevocably submit
to the jurisdiction of the United States District Court or, if such court does not have jurisdiction, the New York state courts located
in the Borough of Manhattan, State of New York, which submission shall be exclusive. |
| 7. | Assignment; Entire Agreement; Amendment. |
| 7.1. | Assignment. Any assignment of this Agreement or
any right, remedy, obligation or liability arising hereunder by either the Sponsor or Investor to any person that is not an affiliate
of such party shall require the prior written consent of the other party; provided, that no such consent shall be required for any such
assignment by Investor to one or more affiliates thereof. |
| 7.2. | Entire Agreement. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter thereof and merges and supersedes all prior discussions, agreements
and understandings of any and every nature among them relating to the subject matter hereof. |
| 7.3. | Amendment. Except as expressly provided in this Agreement,
neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed
by the party against whom enforcement of any such amendment, waiver, discharge or termination is sought. |
| 7.4. | Binding upon Successors. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and to their respective heirs, legal representatives, successors and permitted assigns. |
| 8. | Notices. Unless otherwise provided herein, any notice
or other communication to a party hereunder shall be sufficiently given if in writing and personally delivered or sent by facsimile or
other electronic transmission with copy sent in another manner herein provided or sent by courier (which for all purposes of this Agreement
shall include Federal Express or another recognized overnight courier) or mailed to said party by certified mail, return receipt requested,
at its address provided for herein or such other address as either may designate for itself in such notice to the other. Communications
shall be deemed to have been received when delivered personally, on the scheduled arrival date when sent by next day or 2nd-day courier
service, or if sent by facsimile upon receipt of confirmation of transmittal or, if sent by mail, then three days after deposit in the
mail. If given by electronic transmission, such notice shall be deemed to be delivered (a) if by electronic mail, when directed
to an electronic mail address at which the party has provided to receive notice; and (b) if by any other form of electronic transmission,
when directed to such party. |
| 9. | Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not sign the same counterpart. Counterparts may be delivered
via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
| 10. | Survival; Severability |
| 10.1. | Survival. The representations, warranties, covenants
and agreements of the parties hereto shall survive the closing of the transactions contemplated hereby. |
| 10.2. | Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue
in full force and effect without said provision; provided that no such severability shall be effective if it materially changes the economic
benefit of this Agreement to any party. |
| 11. | Headings. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. |
| 12. | Disclosure; Waiver. As soon as practicable, but in
no event later than one business day, after execution of this Agreement, SPAC will file (to the extent that it has not already filed)
a Current Report on Form 8-K under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), reporting the material
terms of this Agreement. The parties to this Agreement shall cooperate with one another to assure that such disclosure is accurate. SPAC
agrees that the name of the investor shall not be included in any public disclosures related to this Agreement unless required by applicable
law, regulation or stock exchange rule. Investor (i) acknowledges that the Sponsor
may possess or have access to material non-public information which has not been communicated to the Investor; (ii) hereby waives any
and all claims, whether at law, in equity or otherwise, that he, she, or it may now have or may hereafter acquire, whether presently
known or unknown, against the Sponsor or any of SPAC’s officers, directors, employees, agents, affiliates, subsidiaries, successors
or assigns relating to any failure to disclose any non-public information in connection with the transaction contemplated by this Agreement,
including any potential business combination involving SPAC, including without limitation, any claims arising under Rule 10b-5 of the
Exchange Act; and (iii) is aware that the Sponsor is relying on the truth of the representations set forth in Section 3 of this Agreement
and the foregoing acknowledgement and waiver in this Section 12, in connection with the transactions contemplated by this Agreement.
SPAC shall, by 5:30 p.m., New York City time, on the first business day immediately following the date of the Meeting, issue one
or more press releases or file with the United States Securities and Exchange Commission a Current Report on Form 8-K (collectively,
the “Disclosure Document”) disclosing, to the extent not
previously publicly disclosed, all material terms of the transactions contemplated hereby and any other material, non-public information
that SPAC has provided to Investor at any time prior to the filing of the Disclosure Document. Upon the issuance of the Disclosure Document,
to SPAC’s knowledge, Investor shall not be in possession of any material, nonpublic information received from SPAC or any of its
officers, directors or employees. |
| 13. | Independent Nature of Rights and Obligations. Nothing
contained herein, and no action taken by any party pursuant hereto, shall be deemed to constitute Investor and the Sponsor as, and the
Sponsor acknowledges that Investor and the Sponsor do not so constitute, a partnership, an association, a joint venture or any other
kind of entity, or create a presumption that Investor and the Sponsor are in any way acting in concert or as a group with respect to
such obligations or the transactions contemplated by this Agreement or any matters, and the Sponsor acknowledges that Investor and the
Sponsor are not acting in concert or as a group, and the Sponsor shall not assert any such claim, with respect to such obligations or
the transactions contemplated by this Agreement. |
| 14. | Most Favored Nation. In the event the Sponsor or SPAC
enter one or more other non-redemption agreements before or after the execution of this Agreement in connection with the Meeting, the
Sponsor and SPAC represent that the terms of such other agreements are not materially more favorable to such other investors thereunder
than the terms of this Agreement are in respect of the Investor. In the event that another investor is afforded any such more favorable
terms than the Investor, the Sponsor shall promptly inform the Investor of such more favorable terms in writing, and the Investors shall
have the right to elect to have such more favorable terms included herein, in which case the parties hereto shall promptly amend this
Agreement to effect the same. |
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed as of the date first above written.
| |
INVESTOR |
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[●] |
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By: |
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Name: |
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Title: |
|
[Signature Page to Non-Redemption Agreement]
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COMPANY: |
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|
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FUSION ACQUISITION CORP. II |
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By: |
|
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Name: |
|
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Title: |
|
[Signature Page to Non-Redemption Agreement]
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SPONSOR: |
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|
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FUSION SPONSOR II LLC |
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|
|
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|
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By: |
|
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Name: |
|
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Title: |
|
[Signature Page to Non-Redemption Agreement]
Exhibit
A
| Investor |
|
Assigned Securities / Economic
Interest Assigned |
|
Number of Public Shares to be
Held as Investor Shares |
|
Address:
SSN/EIN:
|
|
[●] Class B Shares |
|
[●] Shares of
Class A common stock |
EXHIBIT B
FORM OF JOINDER
TO
LETTER AGREEMENT
AND
REGISTRATION RIGHTS AGREEMENT
______, 20_
Reference is made to that certain Non-Redemption
Agreement and Assignment of Economic Interest, dated as of , 2023 (the “Agreement”), by and among (“Investor”),
Fusion Acquisition Corp. II (the “Company”) and Fusion Sponsor II LLC (the “Sponsor”), pursuant
to which Investor acquired securities of the Company from the Sponsor. Capitalized terms used and not otherwise defined herein shall have
the meanings given to such terms in the Agreement.
By executing this joinder,
Investor hereby agrees, as of the date first set forth above, that Investor (i) shall become a party to that certain Letter Agreement,
dated February 25, 2021, by and among the Company, the Sponsor and the Company’s officers and directors (as it exists on the date
of the Agreement, the “Letter Agreement”), solely with respect to Section 7 of the Letter Agreement, and shall be bound
by, and shall be subject to the restrictions set forth under, the terms and provisions of such section of the Letter Agreement as an Insider
(as defined therein) solely with respect to its Assigned Securities, provided, however, that the Investor shall be permitted to transfer
its Assigned Securities as permitted by the Letter Agreement; and (ii) shall become a party to that certain Registration and Stockholder
Rights Agreement, dated February 25, 2021, by and among the Company and the Sponsor (as it exists on the date of the Agreement, the “Registration
Rights Agreement”), and shall be bound by the terms and provisions of the Registration Rights Agreement as a Holder (as defined
therein) and entitled to the rights of a Holder under the Registration Rights Agreement and the Assigned Securities (together with
any other equity security of the Company issued or issuable with respect to any such Assigned Securities by way of a share dividend or
share subdivision or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization) shall be “Registrable
Securities” thereunder.
This joinder may be executed
in two or more counterparts, and by facsimile, all of which shall be deemed an original and all of which together shall constitute one
instrument.
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[INVESTOR] |
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By: |
|
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Name: |
|
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Title: |
|
| ACKNOWLEDGED AND AGREED: |
|
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| FUSION ACQUISITION CORP. II |
|
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| By: |
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Name: |
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Title: |
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18
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