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As filed with the Securities and Exchange Commission on January 26, 2024.

 

Registration No. 333-

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 

 

 

PowerUp Acquisition Corp.*

(Exact name of registrant as specified in its charter)

 

Cayman Islands*   6770   N/A
(State or other jurisdiction of
incorporation or organization)
  (Primary Standard Industrial
Classification Code Number)
  (I.R.S. Employer
Identification Number)

 

188 Grand Street, Unit #195

New York, NY 10013
(347) 313-8109

 

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

 

Surendra Ajjarapu

Chief Executive Officer

188 Grand Street, Unit #195

New York, NY 10013
(347) 313-8109

 

 (Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

 

Copies of all communications, including communications sent to agent for service, should be sent to:

 

Kate L. Bechen

Peter F. Waltz

Hallie D. Heath

Dykema Gossett PLLC

111 E. Kilbourn Ave., Suite 1050

Milwaukee, WI 53202

(414) 488-7300

 

W. David Mannheim

Michael K. Bradshaw, Jr.

Nelson Mullins Riley &

Scarborough LLP

301 Hillsborough Street, Suite 1400
Raleigh, NC 27603
(919) 329-3800

 

 

 

Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this Registration Statement becomes effective and after all conditions under the business combination agreement described in this proxy statement / prospectus to consummate the business combination are satisfied or waived.

 

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

  Large accelerated filer Accelerated Filer
         
  Non-accelerated filer Smaller reporting company
         
      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 7(a)(2)(B) of the Securities Act.

 

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

 

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐

 

Exchange Act Rule 14d-l(d) (Cross-Border Third-Party Tender Offer) ☐

 

 

* Prior to the consummation of the Business Combination described herein, the Registrant intends to effect a deregistration under Article 206 of the Cayman Islands Companies Act (as amended) and a domestication under Section 388 of the Delaware General Corporation Law, pursuant to which the Registrant’s jurisdiction of incorporation will be changed from the Cayman Islands to the State of Delaware. All securities being registered will be issued by the continuing entity following the Domestication, which continuing entity following the Domestication will be renamed “Visiox Holdings, Inc.”

 

 

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

 
 

 

The information in the preliminary proxy statement/prospectus is not complete and may be changed. The registrant may not sell the securities described in the preliminary proxy statement/prospectus until the registration statement filed with the Securities and Exchange Commission is declared effective. The preliminary proxy statement/prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

PRELIMINARY — SUBJECT TO COMPLETION, DATED JANUARY 26, 2024

 

PROXY STATEMENT FOR
EXTRAORDINARY GENERAL MEETING OF
POWERUP ACQUISITION CORP.
(A CAYMAN ISLANDS EXEMPTED COMPANY)

 

PROSPECTUS FOR
25,991,229 SHARES OF COMMON STOCK AND

14,375,000 WARRANTS

OF POWERUP ACQUISITION CORP.

 


(SUCH SECURITIES TO BE ISSUED AFTER ITS DOMESTICATION AS A CORPORATION INCORPORATED IN THE STATE OF DELAWARE, AND ITS RENAMING AS VISIOX HOLDINGS, INC. IN CONNECTION WITH THE DOMESTICATION DESCRIBED HEREIN)

 

 

 

The board of directors of PowerUp Acquisition Corp., a Cayman Islands exempted company (“PowerUp”), has unanimously approved the transactions (collectively, the “Business Combination”) contemplated by that certain Agreement and Plan of Merger, dated December 26, 2023 (as it may be amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among PowerUp, PowerUp Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of PowerUp (“Merger Sub”) and Visiox Pharmaceuticals, Inc., a Delaware corporation (“Visiox”), a copy of which is attached to this proxy statement/prospectus as Annex A, including the deregistration of PowerUp under Article 206 of the Cayman Islands Companies Act (as amended) and the domestication under Part XII of the Delaware General Corporation Law, pursuant to which PowerUp’s jurisdiction of incorporation will be changed from the Cayman Islands to the State of Delaware (the “Domestication”) prior to the Closing (as defined in the accompanying proxy statement/prospectus). As described in this proxy statement/prospectus, PowerUp’s shareholders are being asked to consider and vote upon each of the Domestication and the Business Combination, among other items. As used in this proxy statement/prospectus, “New Visiox” refers to PowerUp (which, in connection with the Domestication, will change its name to “Visiox Holdings, Inc.”) after giving effect to the Domestication.

 

In connection with the Domestication, prior to the Closing Date (as defined in the accompanying proxy statement/prospectus): (i) each issued and outstanding Class A ordinary share, par value $0.0001 per share (the “Class A ordinary shares”), of PowerUp will convert, on a one-for-one basis, into a duly authorized, validly issued, fully paid and nonassessable share of Class A common stock, par value $0.0001 per share, of New Visiox (the “New Visiox Class A Common Stock”); and (ii) each issued and outstanding whole warrant to purchase Class A ordinary shares of PowerUp will automatically represent the right to purchase one share of New Visiox Class A Common Stock, at an exercise price of $11.50 per share on the terms and conditions set forth in the Warrant Agreement, dated as of February 17, 2022, by and between PowerUp and Equiniti Trust Company, LLC (f/k/a American Stock Transfer & Trust Company), a New York limited purpose trust company, as warrant agent (in such capacity, the “Warrant Agent”, also referred to herein as the “Transfer Agent”) (the “Warrant Agreement”). Immediately following the Domestication, (i) the New Visiox Class A Common Stock will be reclassified as common stock, par value $0.0001 per share (the “New Visiox Common Stock”); (ii) each issued and outstanding unit of PowerUp that has not been previously separated into the underlying Class A ordinary share and underlying one-half of one warrant upon the request of the holder thereof will be cancelled and will entitle the holder thereof to one share of New Visiox Common Stock and one-half of one public warrant, with a whole public warrant representing the right to acquire one share of New Visiox Common Stock at an exercise price of $11.50 per share on the terms and conditions set forth in the Warrant Agreement; (iii) the governing documents of PowerUp will be amended and restated and become the certificate of incorporation and the bylaws of New Visiox in the form attached to this proxy statement/prospectus as Annex C and Annex D, respectively; and (iv) the form of the certificate of incorporation and the bylaws will be appropriately adjusted to give effect to any amendments contemplated by the form of certificate of incorporation or the bylaws that are not adopted and approved by the PowerUp shareholders, other than the amendments to the PowerUp governing documents that are contemplated by the Organizational Documents Proposal, which is a condition to the Closing of the Business Combination. No fractional warrants will be issued upon the separation of units and only whole warrants will trade. Accordingly, unless you hold at least two units of PowerUp, you will not be able to receive or trade a warrant when the units are separated.

 

 
 

 

On the Closing Date, Merger Sub will merge with and into Visiox (the “Business Combination”), with Visiox being the surviving company. After giving effect to such Business Combination, Visiox shall be a wholly owned subsidiary of New Visiox. In accordance with the terms and subject to the conditions of the Business Combination Agreement and the Proposed Charter (as defined in the accompanying proxy statement/prospectus), at Closing, each share of common stock of Visiox, par value $0.001, per share (“Visiox Common Stock”) issued and outstanding immediately prior to the Effective Time (as defined in the accompanying proxy statement/prospectus) shall be converted into the right to receive the number of shares of duly authorized, validly issued, fully paid and nonassessable shares of New Visiox Common Stock equal to the quotient obtained by dividing (x) the quotient obtained by dividing (i) $80 million by (ii) ten dollars ($10.00) by (y) the aggregate number of shares of Visiox Common Stock that are issued and outstanding immediately prior to the Effective Time. Holders of Visiox Common Stock and SRIRAMA Associates, LLC (the “Sponsor”) will also receive the contingent right to earnout consideration as further described herein. The valuation of Visiox was determined based on negotiations between the parties and is supported by a fairness opinion delivered by a valuation advisory and consulting firm engaged by PowerUp. For further information about the valuation and how it was determined, see the section entitled “Business Combination Proposal — Opinion of Financial Advisor to PowerUp.” After the Closing, New Visiox stockholders and the Sponsor each shall have the contingent right to receive up to 3,000,000 earnout shares as additional consideration, paid over a three-year period, subject to New Visiox achieving certain stock price milestones on an earnout basis. For further information about the valuation, see “Notes to Unaudited Pro Forma Condensed Combined Financial Information — Adjustments to Unaudited Pro Forma Condensed Combined Balance Sheet as of September 30, 2023.”

 

It is anticipated that, upon completion of the Business Combination and assuming that none of PowerUp’s outstanding public shares are redeemed in connection with the Business Combination, (i) the Visiox Stockholders (as defined in the accompanying proxy statement/prospectus) will own, collectively, approximately 40.0% (which anticipates mandatory conversion of certain convertible notes to be reflected therein upon completion of the Business Combination) of the outstanding New Visiox Common Stock, and (ii) PowerUp’s Initial Shareholders (as defined in the accompanying proxy statement/prospectus) will own approximately 36.0% of the outstanding New Visiox Common Stock, in each case, assuming that none of PowerUp’s outstanding public shares are redeemed in connection with the Business Combination, or approximately 44.0% and 39.5%, respectively, assuming that all or 50% of PowerUp’s outstanding public shares are redeemed in connection with the Business Combination. See the section entitled “Business Combination Proposal — Ownership of New Visiox” for more details. PowerUp is in the beginning stages of a private investment in public equity (“PIPE”) process to raise $5.0 million or greater in a private placement offering in order to help facilitate satisfaction of the requirement under the Business Combination Agreement that PowerUp hold at least $5 million in cash upon consummation of the Business Combination, but the foregoing percentages do not assume successful completion of the PIPE. PowerUp expects to finalize the PIPE, if successful, in the first quarter of 2024. However, as of the date of this proxy statement/prospectus no substantive discussions regarding any additional financial arrangements have occurred and the terms of any potential PIPE offering are not known. To date, no party to the Business Combination Agreement has entered into any arrangement related to the planned PIPE transaction or any other equity financing arrangement with any investor.

 

This proxy statement/prospectus covers 25,991,229 shares of New Visiox Common Stock and 14,375,000 public warrants to purchase New Visiox Common Stock. This proxy statement/prospectus covers the maximum number of shares of New Visiox Common Stock that may be issued to Visiox Stockholders under the Business Combination Agreement (inclusive of all earnouts), the maximum number of shares that may be issued to the Sponsor (in its capacity as a shareholder of PowerUp, and also inclusive of up to 3,000,000 shares that may be issued to the Sponsor as partial consideration for facilitating the extension of certain loans to Visiox, and the maximum number of earnout shares that may later be issued to Sponsor in accordance with the terms of the Business Combination Agreement), and the maximum number of shares issued or issuable to the other existing shareholders of PowerUp, in each case, in connection with the Business Combination.

 

PowerUp’s units, public shares and public warrants are currently listed on Nasdaq under the symbols “PWUPU,” “PWUP” and “PWUPW,” respectively. PowerUp will apply for listing, to be effective at the time of the Business Combination, of New Visiox Common Stock and public warrants on Nasdaq under the proposed symbols “VSXP” and “VSXPW,” respectively. It is a condition to the consummation of the Business Combination that PowerUp receive confirmation from Nasdaq that New Visiox has been conditionally approved for listing on Nasdaq, but there can be no assurance such listing condition will be met or that PowerUp will obtain such confirmation from Nasdaq, and you may not know whether the listing condition has been met at the time of the extraordinary general meeting. If such listing condition is not met or if such confirmation is not obtained, the Business Combination will not be consummated.

 

 
 

 

PowerUp will hold an extraordinary general meeting (the “extraordinary general meeting”) to consider matters relating to the Business Combination at [●], Eastern Time, on [●]. For purposes of the Cayman Islands Companies Act and the Amended and Restated Memorandum and Articles of Association of PowerUp, the physical location of the extraordinary general meeting shall be at the offices of [●] located at [●], or you or your proxyholder will be able to attend and vote at the extraordinary general meeting online by visiting [●] and using a control number assigned by Equiniti Trust Company, LLC (f/k/a American Stock Transfer & Trust Company), our transfer agent. To register and receive access to the extraordinary general meeting, registered shareholders and beneficial shareholders (those holding shares through a stock brokerage account or by a bank or other holder of record) will need to follow the instructions applicable to them provided in the accompanying proxy statement/prospectus.

 

PowerUp is an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, and has elected to take advantage of certain reduced public company reporting requirements. See “Summary of the Proxy Statement/Prospectus — Emerging Growth Company.”

 

If you have any questions or need assistance voting your ordinary shares, please contact Issuer Direct Corporation, our proxy solicitor, by calling (919) 481-4000, or banks and brokers can call collect at (919) 481-4000, or by emailing proxy@issuerdirect.com. The notice of the extraordinary general meeting and the proxy statement/prospectus relating to the Business Combination will be available at https://[●].

 

The accompanying proxy statement/prospectus provides shareholders of PowerUp with detailed information about the Business Combination and other matters to be considered at the extraordinary general meeting of PowerUp. We encourage you to read the entire accompanying proxy statement/prospectus, including the annexes and other documents referred to therein, carefully and in their entirety. In particular, when you consider the recommendation of the board of directors of PowerUp to vote in favor of the proposals described in this proxy statement/prospectus, you should keep in mind that PowerUp’s directors and officers have interests in the Business Combination that are different from, in addition to or may conflict with your interests as a shareholder. For instance, the Sponsor (as defined in the accompanying proxy statement/prospectus), and the officers and directors of PowerUp who have invested in the Sponsor entity, will benefit from the completion of a business combination and may be incentivized to complete an acquisition of a less favorable target company or on terms less favorable to shareholders rather than liquidate. SeeBusiness Combination Proposal — Interests of PowerUp’s Directors and Officers in the Business Combination” for a further discussion. You should also carefully consider the risk factors described in the section entitled “Risk Factors” beginning on page 60 of the accompanying proxy statement/prospectus.

 

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THE ACCOMPANYING PROXY STATEMENT/PROSPECTUS, PASSED UPON THE MERITS OR FAIRNESS OF THE BUSINESS COMBINATION OR RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THE ACCOMPANYING PROXY STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.

 

The accompanying proxy statement/prospectus is dated [●], 2024, and is first being mailed to PowerUp’s shareholders on or about [●], 2024.

 

 
 

 

POWERUP ACQUISITION CORP.

 

A Cayman Islands Exempted Company
(Company Number [●])
188 Grand Street, Unit #195

New York, NY 10013

 


NOTICE OF EXTRAORDINARY GENERAL MEETING
TO BE HELD ON
[●]

 

TO THE SHAREHOLDERS OF POWERUP ACQUISITION CORP.:

 

NOTICE IS HEREBY GIVEN that an extraordinary general meeting of the shareholders (the “extraordinary general meeting”) of PowerUp Acquisition Corp., a Cayman Islands exempted company (“PowerUp”), will be held at [●], Eastern Time, on [●], at the offices of [●] located at [●]. The extraordinary general meeting may also be attended virtually over the internet. You will be able to attend the extraordinary general meeting online, vote, and submit your questions during the extraordinary general meeting by visiting [●]. You are cordially invited to attend the extraordinary general meeting, which will be held for the following purposes:

 

  Proposal No. 1 — The Business Combination Proposal — to consider and vote upon a proposal to (i) approve and adopt, by an ordinary resolution under the Cayman Islands Companies Act, PowerUp’s entry into the Agreement and Plan of Merger, dated as of December 26, 2023 (as may be amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among PowerUp, PowerUp Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of PowerUp (“Merger Sub”) and Visiox Pharmaceuticals, Inc., a Delaware corporation (“Visiox”), a copy of which is attached to the accompanying proxy statement/prospectus as Annex A, pursuant to which, among other things, following the de-registration of PowerUp as an exempted company in the Cayman Islands and the continuation and Domestication of PowerUp as a corporation in the State of Delaware, at the Effective Time, Merger Sub will merge with and into Visiox, with Visiox being the surviving company (the “Business Combination”); and (ii) approve the transactions contemplated by the Business Combination Agreement. After giving effect to such Business Combination, Visiox shall be a wholly owned subsidiary of New Visiox. At Closing, each share of common stock of Visiox issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive the number of shares of New Visiox Common Stock equal to the quotient obtained by dividing (x) the quotient obtained by dividing (i) (a) $80,000,000 less (b) the amount by which Net Working Capital at Closing is less than $0.00, less (c) Company Transaction Expenses, less (d) Company Indebtedness at Closing, less (e) the product of (1) the number of Rollover RSUs multiplied by (2) $10.00 (the “Merger Consideration”) by (ii) ten dollars ($10.00) by (y) the aggregate number of shares of Visiox Common Stock that are issued and outstanding immediately prior to the Effective Time, in accordance with the terms of the Business Combination Agreement and certain related agreements (including the 2024 Plan, the Note Assumption Agreement, the Non-Competition Agreement, and the Lock-Up Agreement, each in the form attached to the proxy statement/prospectus as Annex E, Annex F, Annex G, and Annex H, respectively), and the transactions contemplated thereby.
     
  Proposal No. 2 — The Domestication Proposal — to consider and vote upon a proposal, as a special resolution under the Cayman Islands Companies Act, that PowerUp be transferred by way of continuation to Delaware pursuant to Article 47 of PowerUp’s Amended and Restated Memorandum and Articles of Association (the “Existing Governing Documents”), Part XII of the Cayman Islands Companies Act, and Section 388 of the Delaware General Corporation Law (the “DGCL”) and, immediately upon being de-registered in the Cayman Islands, PowerUp be continued and domesticated as a corporation under the laws of the State of Delaware and, conditional upon, and with effect from, the registration of PowerUp as a corporation in the State of Delaware, the name of PowerUp be changed from “PowerUp Acquisition Corp.” to “Visiox Holdings, Inc.”
     
   Proposal No. 3 The Organizational Documents Proposal — to consider and vote upon a proposal, as a special resolution under the Cayman Islands Companies Act, to approve the amendment and restatement of the Existing Governing Documents by their deletion and replacement with the proposed new certificate of incorporation, a copy of which is attached to the proxy statement/prospectus as Annex C (the “Proposed Charter”), and bylaws, a copy of which is attached to the proxy statement/prospectus as Annex D (the “Proposed Bylaws” and, together with the Proposed Charter, the “Proposed Organizational Documents”), of New Visiox, which, if approved, would take effect immediately after the Domestication.

 

 
 

 

  Proposal No. 4 The Advisory Charter Proposals — to consider and vote, on a non-binding advisory basis, upon the following eight (8) separate resolutions to approve material differences between the Proposed Charter and the Existing Governing Documents:

 

    Advisory Charter Proposal 4A — to increase the authorized share capital of PowerUp from US$35,500 divided into (i) 300,000,000 Class A ordinary shares, par value $0.0001 per share, 50,000,000 Class B ordinary shares, par value $0.0001 per share, and 5,000,000 preference shares, par value $0.0001 per share, to (ii) [●] shares of common stock, par value $0.0001 per share, of New Visiox and [●] shares of preferred stock, par value $0.0001 per share, of New Visiox.
       
    Advisory Charter Proposal 4B — to permit removal of a director with or without cause by the affirmative vote of the holders of a majority of the voting power of all of the outstanding shares of voting stock of New Visiox entitled to vote at an election of directors, voting together as a single class.
       
    Advisory Charter Proposal 4C — to provide that, subject to the rights of holders of any series of preferred stock, the number of directors will be fixed from time to time by a majority of the board of directors of New Visiox (the “New Visiox Board”).
       
    Advisory Charter Proposal 4D — to eliminate the ability of New Visiox stockholders to take action by written consent in lieu of a meeting.
       
    Advisory Charter Proposal 4E — to provide that the Proposed Bylaws may be amended, altered, repealed or adopted either (x) by the affirmative vote of a majority of the New Visiox Board then in office or (y) by the approval of at least a majority of the voting power of all of the then-outstanding shares of voting stock of New Visiox.
       
    Advisory Charter Proposal 4F — to provide that the Proposed Charter may be amended, altered, repealed or adopted by the approval of at least two-thirds of the voting power of all of the then-outstanding shares of voting stock of New Visiox for amendments for certain provisions of the Proposed Charter relating to: (i) classification and election of the New Visiox Board, removal of directors from office, and filling vacancies on the New Visiox Board, (ii) exculpation of personal liability of a director of New Visiox and indemnification of persons serving as directors or officers of New Visiox, and (iii) amendments to the Proposed Bylaws.
       
    Advisory Charter Proposal 4G — to provide that, unless New Visiox otherwise consents in writing, the Court of Chancery for the State of Delaware (or, in the event that the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware) will be the sole and exclusive forum for certain stockholder actions and the federal district courts of the United States shall be the exclusive forum for claims arising out of the Securities Act of 1933, as amended (the “Securities Act”), provided that the exclusive forum provision in the Proposed Charter does not apply to claims arising out of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for which the federal district courts of the United States are the exclusive forum.
       
    Advisory Charter Proposal 4H — to eliminate certain provisions related to PowerUp’s status as a blank check company, including to remove the requirement to dissolve New Visiox and allow it to continue as a corporate entity with perpetual existence following consummation of the Business Combination.

 

  Proposal No. 5 — The Nasdaq Proposal — to consider and vote upon a proposal to approve, as an ordinary resolution under the Cayman Islands Companies Act, for the purposes of complying with the applicable provisions of Nasdaq Rule 5635, the issuance of shares of New Visiox Common Stock in connection with the Business Combination.

 

 
 

 

  Proposal No. 6 — The Omnibus Incentive Plan Proposal — to consider and vote upon a proposal to approve, as an ordinary resolution under the Cayman Islands Companies Act, the Visiox Holdings, Inc. 2024 Omnibus Incentive Plan, a copy of which is attached to the proxy statement/prospectus as Annex E.
     
  Proposal No. 7 — The Election of Directors Proposal — to consider and vote upon a proposal to approve, as an ordinary resolution under the Cayman Islands Companies Act, the election of five directors to serve staggered terms on New Visiox’s board of directors.
     
  Proposal No. 8 — The Adjournment Proposal — to consider and vote upon a proposal to approve, as an ordinary resolution under the Cayman Islands Companies Act, the adjournment of the extraordinary general meeting to a later date or dates (A) to the extent necessary or convenient to ensure that any required supplement or amendment to the proxy statement/prospectus is provided to PowerUp shareholders or, if as of the time for which the extraordinary general meeting is scheduled, there are insufficient PowerUp ordinary shares represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the extraordinary general meeting or (B) in order to solicit additional proxies from PowerUp shareholders in favor of one or more of the proposals at the extraordinary general meeting.

 

Each of the Business Combination Proposal, the Domestication Proposal, the Organizational Documents Proposal, the Nasdaq Proposal, the Election of Directors Proposal, and the Omnibus Incentive Plan Proposal is conditioned on the approval and adoption of each of the other Condition Precedent Proposals. The Advisory Charter Proposals are conditioned upon the approval of the Organizational Documents Proposal. The Adjournment Proposal is not conditioned upon the approval of any other proposal.

 

These items of business listed above are described in more detail in this proxy statement/prospectus, which we encourage you to read carefully and in its entirety before voting.

 

Only holders of record of ordinary shares at the close of business on [●] are entitled to notice of, and to vote and have their votes counted at, the extraordinary general meeting and any adjournment of the extraordinary general meeting.

 

This proxy statement/prospectus and accompanying proxy card is being provided to PowerUp’s shareholders in connection with the solicitation of proxies to be voted at the extraordinary general meeting and at any adjournment of the extraordinary general meeting. Whether or not you plan to attend the extraordinary general meeting, all of PowerUp’s shareholders are urged to read this proxy statement/prospectus, including the annexes and the documents referred to herein, carefully and in their entirety. You should also carefully consider the risk factors described in the section entitled “Risk Factorsbeginning on page 60 of this proxy statement/prospectus.

 

After careful consideration, the board of directors of PowerUp has unanimously approved the Business Combination Agreement and the transactions contemplated thereby, including the Business Combination and Domestication, and unanimously recommends that shareholders vote “FOR” the adoption of the Business Combination Agreement and approval of the transactions contemplated thereby, including the Business Combination and Domestication, and “FOR” all other proposals presented to PowerUp’s shareholders in this proxy statement/prospectus. When you consider the recommendation of these proposals by the board of directors of PowerUp, you should keep in mind that PowerUp’s directors and officers have interests in the Business Combination that may conflict with your interests as a shareholder. See “Business Combination Proposal — Interests of PowerUp’s Directors and Executive Officers in the Business Combination” in this proxy statement/prospectus for a further discussion of these considerations.

 

Pursuant to the Existing Governing Documents, a public shareholder may request that PowerUp redeem all or a portion of its public shares for cash if the Business Combination is consummated. As a holder of public shares, you will be entitled to receive cash for any public shares to be redeemed only if you:

 

  (i) (a) hold public shares or (b) if you hold public shares through units, you elect to separate your units into the underlying public shares and warrants prior to exercising your redemption rights with respect to the public shares;
     
  (ii) submit a written request to Equiniti Trust Company, LLC (f/k/a American Stock Transfer & Trust Company) (“Equiniti”), PowerUp’s transfer agent, in which you (i) request that PowerUp redeem all or a portion of your public shares for cash; (ii) identify yourself as the beneficial holder of the public shares and provide your legal name, phone number and address; and (iii) deliver your public shares to Equiniti, PowerUp’s transfer agent, physically or electronically through The Depository Trust Company (“DTC”); and
     
  (iii) deliver your certificates for public shares (if any) along with the redemption forms to Equiniti, PowerUp’s transfer agent, physically or electronically through The Depository Trust Company.

 

 
 

 

Holders must complete the procedures for electing to redeem their public shares in the manner described above prior to [●], [●] Time, on [●] (two business days before the scheduled vote at the extraordinary general meeting) in order for their shares to be redeemed.

 

Holders of units must elect to separate the units into the underlying public shares and warrants prior to exercising redemption rights with respect to the public shares. Public holders that hold their units in an account at a brokerage firm or bank must notify their broker or bank that they elect to separate the units into the underlying public shares and warrants, or if a holder holds units registered in its own name, the holder must contact Equiniti, PowerUp’s transfer agent, directly and instruct them to do so. The redemption rights include the requirement that a holder must identify itself in writing as a beneficial holder and provide its legal name, phone number and address to Equiniti in order to validly redeem its shares. Public shareholders may elect to redeem public shares regardless of if or how they vote in respect of the Business Combination Proposal and regardless of whether they hold public shares on the record date. If the Business Combination is not consummated, the public shares will be returned to the respective holder, broker or bank. If the Business Combination is consummated, and if a public shareholder properly exercises its right to redeem all or a portion of the public shares that it holds and timely delivers its shares to Equiniti, PowerUp’s transfer agent, New Visiox will redeem such public shares for a per share price, payable in cash, equal to the pro rata portion of the trust account established at the consummation of PowerUp’s initial public offering (the “Trust Account”), calculated as of two business days prior to the consummation of the Business Combination. For illustrative purposes, based on approximately $19.6 million of funds in the Trust Account and 1,803,729 shares subject to possible redemption, in each case, as of September 30, 2023, this would have amounted to approximately $10.89 per issued and outstanding public share. If a public shareholder exercises its redemption rights in full, then it will be electing to exchange its public shares for cash and will no longer own public shares. The redemption will take place following the Domestication and, accordingly, it is shares of New Visiox Common Stock that will be redeemed immediately after consummation of the Business Combination. See “Extraordinary General Meeting of PowerUp — Redemption Rights” in this proxy statement/prospectus for a detailed description of the procedures to be followed if you wish to redeem your public shares for cash.

 

Notwithstanding the foregoing, a public shareholder, together with any affiliate of such public shareholder or any other person with whom such public shareholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act), will be restricted from redeeming its public shares with respect to more than an aggregate of 15% of the public shares. Accordingly, if a public shareholder, alone or acting in concert or as a group, seeks to redeem more than 15% of the public shares, then any such shares in excess of that 15% limit would not be redeemed for cash.

 

The Original Sponsor, pursuant to the Letter Agreement, and the Sponsor, pursuant to the Sponsor Purchase Agreement, agreed to, among other things, vote all of their shares in favor of the proposals being presented at the extraordinary general meeting in connection with the consummation of the Business Combination and not to redeem any public shares they own. Such shares will be excluded from the pro rata calculation used to determine the per share redemption price. As of the date of this proxy statement/prospectus, the Original Sponsor and the Sponsor own approximately 79.9% of the issued and outstanding ordinary shares. Because the Initial Shareholders agreed to vote their aggregate 7,187,500 outstanding Class A ordinary shares in favor of each of the proposals, PowerUp will not need any of the public shares to be voted in favor of any of the proposals in order for each proposal to be approved. See “Business Combination Proposal — Related Agreements — Letter Agreement” in the accompanying proxy statement/prospectus for more information related to the Letter Agreement.

 

The Business Combination Agreement is subject to the satisfaction or waiver of certain other closing conditions as described in the accompanying proxy statement/prospectus. There can be no assurance that the parties to the Business Combination Agreement would waive any such provision of the Business Combination Agreement. In addition, in no event will PowerUp redeem public shares in an amount that would cause New Visiox’s net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) to be less than $5,000,001 after giving effect to the transactions contemplated by the Business Combination Agreement. Although PowerUp would not need any of the public shares to vote in favor of the Business Combination Proposal in order for it to be approved, the Closing of the Business Combination is conditioned on PowerUp having at least $5,000,000 remaining in its Trust Account after giving effect to the completion and payment of redemptions or available from the concurrent consummation of a PIPE investment, after giving effect to the payment in full of PowerUp’s unpaid expenses and liabilities, the payment of the Advisory Fee, the potential repayment of the Secured Convertible Promissory Note, dated December 1, 2023, issued by Visiox to the Sponsor (the “Visiox Convertible Note”), and the repayment of Working Capital Loans (the “Minimum Cash Condition”). Therefore, even if the Business Combination Proposal is approved, the Business Combination will not close if PowerUp does not have sufficient cash remaining to meet the Minimum Cash Condition. For further discussion on the Minimum Cash Condition, see “Notes to Unaudited Pro Forma Condensed Combined Financial Information — Minimum Cash Closing Condition and Proposed PIPE Investment”.

 

 
 

 

The approval of the Domestication Proposal and Organizational Documents Proposal each requires a special resolution under the Cayman Islands Companies Act, being the affirmative vote of at least a two-thirds (2/3) majority of the votes cast by the holders of the issued ordinary shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. The approval of each of the Business Combination Proposal, the Advisory Charter Proposals, the Omnibus Incentive Plan Proposal, the Nasdaq Proposal, the Election of Directors Proposal, and the Adjournment Proposal requires an ordinary resolution, being the affirmative vote of at least a majority of the votes cast by the holders of the issued ordinary shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter.

 

Your vote is very important. Whether or not you plan to attend the extraordinary general meeting, please vote as soon as possible by following the instructions in this proxy statement/prospectus to make sure that your shares are represented at the extraordinary general meeting. If you hold your shares in “street name” through a bank, broker or other nominee, you will need to follow the instructions provided to you by your bank, broker or other nominee to ensure that your shares are represented and voted at the extraordinary general meeting. The Business Combination will be consummated only if the Condition Precedent Proposals are approved at the extraordinary general meeting. Each of the Condition Precedent Proposals is cross-conditioned on the approval of each other. The Advisory Charter Proposals are conditioned upon the approval of the Organizational Documents Proposal. The Adjournment Proposal is not conditioned upon the approval of any other proposal set forth in this proxy statement/prospectus.

 

If you sign, date and return your proxy card without indicating how you wish to vote, your proxy will be voted FOR each of the proposals presented at the extraordinary general meeting. If you fail to return your proxy card or fail to instruct your bank, broker or other nominee how to vote, and do not attend the extraordinary general meeting in person, the effect will be, among other things, that your shares will not be counted for purposes of determining whether a quorum is present at the extraordinary general meeting. If you are a shareholder of record and you attend the extraordinary general meeting and wish to vote in person, you may withdraw your proxy and vote in person.

 

Your attention is directed to the remainder of the proxy statement/prospectus following this notice (including the annexes and other documents referred to herein) for a more complete description of the Business Combination and related transactions and each of the proposals. You are encouraged to read this proxy statement/prospectus carefully and in its entirety, including the annexes and other documents referred to herein. If you have any questions or need assistance voting your ordinary shares, please contact Issuer Direct Corporation, our proxy solicitor, by calling (919) 481-4000, or banks and brokers can call collect at (919) 481-4000, or by emailing proxy@issuerdirect.com.

 

Thank you for your participation. We look forward to your continued support.

 

By Order of the Board of Directors of PowerUp Acquisition Corp.,

 

Surendra Ajjarapu
Chief Executive Officer and Chairman of the Board of Directors

 

 
 

 

TABLE OF CONTENTS

 

ADDITIONAL INFORMATION 1
MARKET AND INDUSTRY DATA 1
TRADEMARKS 1
SELECTED DEFINITIONS 1
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS 10
QUESTIONS AND ANSWERS FOR SHAREHOLDERS OF POWERUP 12
SUMMARY OF THE PROXY STATEMENT/PROSPECTUS 36
SELECTED HISTORICAL FINANCIAL INFORMATION OF POWERUP 57
SELECTED HISTORICAL FINANCIAL INFORMATION OF VISIOX 58
MARKET PRICE AND DIVIDEND INFORMATION 59
RISK FACTORS 60
EXTRAORDINARY GENERAL MEETING OF POWERUP 127
BUSINESS COMBINATION PROPOSAL 134
DOMESTICATION PROPOSAL 165
ORGANIZATIONAL DOCUMENTS PROPOSAL 168
ADVISORY CHARTER PROPOSALS 170
NASDAQ PROPOSAL 174
OMNIBUS INCENTIVE PLAN PROPOSAL 175
ELECTION OF DIRECTORS PROPOSAL 186
ADJOURNMENT PROPOSAL 187
U.S. FEDERAL INCOME TAX CONSIDERATIONS 188
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION 199
INFORMATION ABOUT POWERUP 214
POWERUP’S MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 220
INFORMATION ABOUT VISIOX 228
VISIOX’S MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 250
MANAGEMENT OF NEW VISIOX FOLLOWING THE BUSINESS COMBINATION 265
VISIOX EXECUTIVE OFFICER AND DIRECTOR COMPENSATION 272
BENEFICIAL OWNERSHIP OF SECURITIES 279
CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS 281
COMPARISON OF CORPORATE GOVERNANCE AND SHAREHOLDER RIGHTS 285
DESCRIPTION OF NEW VISIOX SECURITIES 289
SECURITIES ELIGIBLE FOR FUTURE SALE 300
STOCKHOLDER PROPOSALS AND NOMINATIONS 301
SHAREHOLDER COMMUNICATIONS 302
LEGAL MATTERS 302
EXPERTS 302
DELIVERY OF DOCUMENTS TO SHAREHOLDERS 302
ENFORCEABILITY OF CIVIL LIABILITY 302
TRANSFER AGENT AND REGISTRAR 303
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE 303
INDEX TO FINANCIAL STATEMENTS F-1
ANNEX A – The Business Combination Agreement A-1
ANNEX B – The Existing Governing Documents of PowerUp B-1
ANNEX C – Proposed Charter of New Visiox C-1
ANNEX D – Proposed Bylaws of New Visiox D-1
ANNEX E – Omnibus Incentive Plan*  
ANNEX F – Note Assumption Agreement*  
ANNEX G – Non-Competition Agreement*  
ANNEX H – Form of Lock-Up Agreement*  
ANNEX I – Fairness Opinion I-1
ANNEX J – Form of Proxy Card*  

 

* To be filed by amendment

 

i
 

 

ADDITIONAL INFORMATION

 

This proxy statement/prospectus incorporates important business and financial information about PowerUp that is not included in or delivered with the document. You may request copies of this proxy statement/prospectus and any other publicly available information concerning PowerUp, without charge, by written request to PowerUp Acquisition Corp., 188 Grand Street, Unit #195, New York, NY 10013, or by telephone request at (347) 313-8109; or from Issuer Direct Corporation, our proxy solicitor, by calling (919) 481-4000, or banks and brokers can call collect at (919) 481-4000, or by emailing proxy@issuerdirect.com, or from the SEC through the SEC website at http://www.sec.gov.

 

In order for PowerUp’s shareholders to receive timely delivery of the documents in advance of the extraordinary general meeting of PowerUp to be held on [●], you must request the information no later than five business days prior to the date of the extraordinary general meeting, or by [●].

 

MARKET AND INDUSTRY DATA

 

Certain information contained in this document relates to or is based on studies, publications, surveys and other data obtained from third-party sources and Visiox’s own internal estimates and research. While we are not aware of any misstatements regarding such third-party information and data presented in this proxy statement/prospectus, such information and data involves risks and uncertainties and is subject to change based on various factors, including, potentially, those discussed under the section entitled “Risk Factors.” Furthermore, such information and data cannot always be verified with complete certainty due to limits on the availability and reliability of raw data, the voluntary nature of the data gathering process and other limitations and uncertainties inherent in any statistical survey. Finally, while we believe our own internal estimates and research are reliable, and are not aware of any misstatements regarding such information and data presented in this proxy statement/prospectus, such research has not been verified by any independent source.

 

TRADEMARKS

 

This document contains references to trademarks, trade names and service marks belonging to other entities. Solely for convenience, trademarks, trade names and service marks referred to in this proxy statement/prospectus may appear without the ® or TM symbols, but such references are not intended to indicate, in any way, that the applicable licensor will not assert, to the fullest extent under applicable law, its rights to these trademarks and trade names. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, any other companies.

 

SELECTED DEFINITIONS

 

Unless otherwise stated in this proxy statement/prospectus or the context otherwise requires, the following terms shall have the following meanings:

 

  “2024 Plan” means the Visiox Holdings, Inc. 2024 Omnibus Incentive Plan;
     
  “ACA” means the Affordable Care Act;
     
  “Amended and Restated Memorandum and Articles of Association” means the amended and restated memorandum and articles of association of PowerUp;
     
  “Antitrust Division” means the Antitrust Division of the Department of Justice;
     
  “ASC” means Accounting Standards Codification;
     
  “ASC 815” means Accounting Standards Codification 815-40, Derivatives and Hedging-Contracts in Entity’s Own Equity;

 

1
 

 

  “ASU” means the Accounting Standards Updates issued by FASB;
     
  “Business Combination” pursuant to the Business Combination Agreement, the Business Combination of Merger Sub into Visiox, with Visiox surviving the Business Combination as a wholly owned subsidiary of New Visiox;
     
  “Business Combination Agreement” means, that certain Agreement and Plan of Merger, dated as of December 26, 2023 (as may be amended, supplemented or otherwise modified from time to time), by and among PowerUp, Merger Sub, and Visiox;
     
  “Business Combination Consideration” means the shares of New Visiox Common Stock to be issued on the Closing Date and thereafter (including the Visiox Earnout Shares) as consideration in the Business Combination;
     
  “Cayman Islands Companies Act” means the Companies Act (2023 Revision) of the Cayman Islands as the same may be amended from time to time;
     
  “CCPA” means the California Consumer Privacy Act;
     
  “Citigroup” means Citigroup Global Markets Inc., the underwriter for the initial public offering;
     
  “CMS” means the Centers for Medicare and Medicaid Services;
     
  “cGMP” means current good manufacturing practice;
     
  “Class A ordinary shares” means the Class A ordinary shares, par value $0.0001 per share, of PowerUp, which will convert by operation of law into shares of New Visiox Class A Common Stock, on a one-for-one basis, in connection with the Domestication;
     
  “Class B ordinary shares” or “founder shares” means the Class B ordinary shares, par value $0.0001 per share, of PowerUp that were initially issued to our Original Sponsor in a private placement prior to our initial public offering and converted to Class A ordinary shares on May 18, 2023;
     
  “Closing” means the closing of the Business Combination;
     
  “Closing Date” means that date that is in no event later than the third (3rd) business day, following the satisfaction (or, to the extent permitted by applicable law, waiver) of the conditions to Closing set forth in the Business Combination Agreement, which are described under the section entitled “Business Combination Proposal — Conditions to Closing of the Business Combination” (other than those conditions that by their nature are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions) or at such other date as PowerUp and Visiox may agree in writing;
     
  “CMO” means contract manufacturing organization;
     
  “Code” means the U.S. Internal Revenue Code of 1986, as amended;

 

2
 

 

  “Company Transaction Expenses” means all fees and expenses of any of the Company incurred or payable as of the Closing and not paid prior to the Closing (i) in connection with the consummation of the transactions contemplated hereby, including any amounts payable to professionals (including investment bankers, brokers, finders, attorneys, accountants and other consultants and advisors) retained by or on behalf of the Company, (ii) any sales, use, real property transfer, stamp, stock transfer or other similar transfer Taxes imposed on the Company in connection with the Merger or the other transactions contemplated by this Agreement, and (iii) in connection with the Company’s prior attempt at completing an initial public offering or SPAC transaction, including any amounts payable to professionals (including investment bankers, brokers, finders, attorneys, accountants and other consultants and advisors) retained by or on behalf of the Company in connection with the Company’s attempted initial public offering or SPAC transaction;
     
  “Condition Precedent Proposals” means the Business Combination Proposal, the Domestication Proposal, the Organizational Documents Proposal, the Nasdaq Proposal, the Election of Directors Proposal, and the Omnibus Incentive Plan Proposal, collectively;
     
  “Conversion” means the conversion, on May 18, 2023, of all of the issued and outstanding Class B ordinary shares of PowerUp into Class A ordinary shares on a one-for-one basis upon the election of the Original Sponsor;
     
  “COVID-19” means the novel coronavirus disease 2019;
     
  “CRL” means any Complete Response Letter issued by FDA;
     
  “CRO” means clinical research organization;
     
  “DGCL” means the Delaware General Corporation Law;
     
  “Domestication” means the transfer by way of continuation and deregistration of PowerUp from the Cayman Islands and the continuation and Domestication of PowerUp as a corporation incorporated in the State of Delaware prior to the Business Combination;
     
  “DTC” means The Depository Trust Company;
     
  “Earnout Period” means the time period between the Closing Date and the 36-month anniversary of the Closing Date;
     
  “Earnout Shares” means an aggregate of 6,000,000 shares of New Visiox Common Stock, (i) 3,000,000 shares of which are comprised of three separate tranches of 1,000,000 shares per tranche, issuable to Visiox Stockholders during the Earnout Period upon the achievement of the applicable Earnout Triggering Events, and (ii) 3,000,000 shares of which are comprised of three separate tranches of 1,000,000 shares per tranche, issuable to the Sponsor during the Earnout Period upon the achievement of the applicable Earnout Triggering Events;
     
  “Earnout Targets” means each of the Launch Target, First Share Price Target, and Second Share Price Target.

 

3
 

 

  “Effective Time” means the time at which the Business Combination becomes effective;
     
  “Equiniti” means Equiniti Trust Company, LLC (f/k/a American Stock Transfer & Trust Company);
     
  “Exchange Act” means the Securities Exchange Act of 1934, as amended;
     
  “Exchange Ratio” means the quotient obtained by dividing (x) the quotient obtained by dividing (i) (a) $80,000,000 less (b) the amount by which Net Working Capital at Closing is less than $0.00, less (c) Company Transaction Expenses, less (d) Company Indebtedness at Closing, less (e) the product of (1) the number of Rollover RSUs multiplied by (2) $10.00 (the “Merger Consideration”) by (ii) ten dollars ($10.00) by (y) the number of shares of Visiox Common Stock that are issued and outstanding immediately prior to the Effective Time (assuming the conversion of Scheduled RSUs, the Preferred Conversion, the TardiMed Stock Issuance, and the Santen Stock Issuance);
     
  “extraordinary general meeting” means the extraordinary general meeting of PowerUp to be held at [●], [●] Eastern Time, on [●], at the offices of [●] located at [●], and via a virtual meeting, unless the extraordinary general meeting is adjourned, or at such other time, on such other date and at such other place to which the meeting may be adjourned;
     
  “Existing Governing Documents” means the Amended and Restated Memorandum and Articles of Association;
     
  “Extension Meeting” means the PowerUp extraordinary general meeting of shareholders held on May 18, 2023, at which shareholders voted upon a proposal to amend the Amended and Restated Memorandum and Articles of Association to extend the date by which PowerUp must consummate an initial business combination;
     
  “Extension Period” means any extended time that PowerUp has to consummate an initial business combination beyond May 23, 2023 as a result of a shareholder vote to amend the Amended and Restated Memorandum and Articles of Association;
     
  “Extension Redemption” means the redemption of 26,946,271 Class A ordinary shares in connection with the Extension Meeting;
     
  “FASB” means the Financial Accounting Standards Board;
     
  “FDA” means the U.S. Food and Drug Administration;
     
  “FINRA” means the Financial Industry Regulatory Authority;
     
  “First Commercial Sale” mean, with respect to a product, the first sale, transfer or disposition for value or for end use or consumption of such product after marketing authorization has been received; provided, that, (a) any sale to an Affiliate of Visiox shall not constitute a First Commercial Sale unless the Affiliate is the last entity in the distribution chain of the product; (b) any distribution of samples with respect to a product shall not constitute a First Commercial Sale; and (c) any sale or other distribution for use in a clinical trial or for compassionate use in which no monetary consideration is paid to Visiox shall not constitute a First Commercial Sale.
     
  “F Reorganization” means a reorganization within the meaning of Section 368(a)(1)(F) of the Code;
     
  “FTC” means the U.S. Federal Trade Commission;

 

4
 

 

  “GAAP” means the U.S. generally accepted accounting principles, consistently applied;
     
  “GCP” means the FDA good clinical practice guidelines;
     
  “GDPR” means the EU’s General Data Protection Regulation;
     
  “GLP” means good laboratory practice;
     
  “HIPAA” means the Health Insurance Portability and Accountability Act;
     
  “HITECH” means the Health Information Technology for Economic and Clinical Health Act;
     
  “Holders” means the U.S. Holders together with the Non-U.S. Holders;
     
  “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended;
     
  “IND” means investigational new drug application;
     
  “Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including the outstanding principal and accrued but unpaid interest), (b) all obligations for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business), (c) any other indebtedness of such Person that is evidenced by a note, bond, debenture, credit agreement or similar instrument, (d) all obligations of such Person under leases that should be classified as capital leases in accordance with GAAP, (e) all obligations of such Person for the reimbursement of any obligor on any line or letter of credit, banker’s acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (f) all obligations of such Person in respect of acceptances issued or created, (g) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (h) all obligations secured by an Lien on any property of such Person, (i) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person and (j) all obligation described in clauses (a) through (i) above of any other Person which is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
     
  “Inflation Reduction Act” means the Inflation Reduction Act of 2022;
     
  “Initial public offering” means PowerUp’s initial public offering that was consummated on February 23, 2022;
     
  “Initial Shareholders” means the Original Sponsor (PowerUp Sponsor LLC), the Sponsor (SRIRAMA Associates, LLC), and each of their permitted transferees under the Letter Agreement;
     
  “Insiders” means the Original Sponsor and PowerUp’s officers and directors;
     
  “Investment Company Act” means the Investment Company Act of 1940, as amended;
     
  “IPO Registration Statement” means the registration statement on Form S-1 that PowerUp filed in connection with its initial public offering;
     
  “IRB” means independent institutional review board;

 

5
 

 

  “IRS” means the Internal Revenue Service;
     
  “JOBS Act” means the Jumpstart Our Business Startups Act of 2012;
     
  “Letter Agreement” means that certain letter agreement, dated February 17, 2022, by and among the Insiders and PowerUp;
     
  “Lien” means any mortgage, pledge, security interest, attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
     
  “Locked-Up Party” means each party to the Lock-Up Agreement;
     
  “Lock-Up Agreement” means the lock-up agreements to be executed in connection with the Closing by New Visiox, the Significant Company Holder, and the Sponsor;
     
  “Lock-Up Securities” means the shares of New Visiox Common Stock and warrants subject to the Lock-Up Agreement;
     
  “Lock-Up Shares” means the shares of New Visiox Common Stock subject to the Lock-Up Agreement;
     
  “LOI” means the letter of intent, dated November 21, 2023, by and between Visiox and PowerUp;
     
  “Marcum” means Marcum LLP, PowerUp’s independent registered public accounting firm;
     
  “Merger Consideration” means (a) $80,000,000 less (b) the amount by which Net Working Capital at Closing is less than $0.00, less (c) Company Transaction Expenses, less (d) Company Indebtedness at Closing, less (e) the product of (1) the number of Rollover RSUs multiplied by (2) $10.00;
     
  “Minimum Cash Condition” means the closing condition that requires PowerUp to have at least $5,000,000 remaining in its Trust Account after giving effect to the completion and payment of redemptions or available from the concurrent consummation of a PIPE investment, after giving effect to the payment in full of PowerUp’s unpaid expenses and liabilities, the payment of the Advisory Fee, the repayment of the Visiox Convertible Note, and the repayment of Working Capital Loans;
     
  “Nasdaq” means the Nasdaq Stock Market LLC;
     
  “NDAs” means non-disclosure agreements;
     
  “Nelson Mullins” means Nelson Mullins Riley & Scarborough LLP, counsel to Visiox;
     
  “Net Working Capital” means at any specified time, (i) all current assets of Visiox and its subsidiaries (excluding, without duplication, Visiox’s cash and cash equivalents), on a consolidated basis, minus (ii) all current liabilities of the Visiox and its subsidiaries (excluding, without duplication, Indebtedness and Company Transaction Expenses), on a consolidated basis and as determined in accordance with Visiox’s consistently applied accounting principles; provided, that, for purposes of this definition, whether or not the following is consistent with Visiox’s accounting principles, “current assets” will exclude any receivable from a Company Affiliate;
     
  “New Visiox” means PowerUp upon and after the Business Combination;
     
  “New Visiox Board” means the board of directors of New Visiox;

 

6
 

 

  “New Visiox Common Stock” means the common stock, par value $0.0001 per share, of New Visiox;
     
  “Non-Competition Agreement” means the non-competition agreement to be delivered in connection with the Closing by the Significant Company Holder in favor of PowerUp and Visiox;
     
  “Non-U.S. Holder” means a beneficial owner of a PowerUp Security who or that is, for U.S. federal income tax purposes: a non-resident alien individual, other than certain former citizens and residents of the United States subject to U.S. tax as expatriates; a foreign corporation; or an estate or trust that is not a U.S. Holder;
     
  “Original Sponsor” means PowerUp Sponsor LLC;
     
  “Outside Date” means May 31, 2024;
     
  “PFIC” means passive foreign investment company;
     
  “PIPE” means the private investment in public equity of shares of New Visiox Common Stock, which is expected to close, if successful, simultaneously with the Closing;
     
  “private placement warrants” means the warrants sold to the Original Sponsor in a private placement simultaneously with the closing of the initial public offering;
     
  “pro forma” means giving pro forma effect to the Business Combination, including the Business Combination and any other equity financing transactions which may be entered into prior to Closing;
     
  “Proposed Bylaws” means the proposed bylaws of New Visiox to be effective upon the Domestication attached to this proxy statement/prospectus as Annex D;
     
  “Person” means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof;
     
   “Proposed Charter” means the proposed certificate of incorporation of New Visiox to be effective upon the Domestication attached to this proxy statement/prospectus as Annex C;
     
  “Proposed Governing Documents” means the Proposed Charter and the Proposed Bylaws;
     
  “public shareholders” means holders of public shares, whether acquired in PowerUp’s initial public offering or acquired in the secondary market;
     
  “public shares” means the currently outstanding 1,803,729 Class A ordinary shares of PowerUp sold as part of the PowerUp units in its initial public offering, whether acquired in PowerUp’s initial public offering or acquired in the secondary market;
     
  “public warrants” means the redeemable warrants to purchase Class A ordinary shares of PowerUp sold as part of the units in its initial public offering or acquired in the secondary market;
     
  “record date” means [●];

 

7
 

 

  “redemption” means each redemption of public shares for cash pursuant to the Existing Governing Documents;
     
  “Rollover RSU” means each RSU of Visiox that is outstanding and unvested that will be automatically canceled and converted into an award under the Incentive Plan;
     
  “Rollover VAR” means each VAR of Visiox that is outstanding that will be automatically cancelled and converted into an award under the Incentive Plan;
     
  “RSU” means restricted stock unit;
     
  “Rule 144” means Rule 144 under the Securities Act;
     
  “Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002;
     
  “SEC” means the Securities and Exchange Commission;
     
  “Section 11” means Section 11 of the Securities Act;
     
  “Securities Act” means the Securities Act of 1933, as amended;
     
  “Significant Company Holder” means TardiMed.
     
  “PowerUp” “we,” “us” or “our” means PowerUp Acquisition Corp., a Cayman Islands exempted company, prior to the consummation of the Business Combination, and “we,” “us,” or “our” means New Visiox upon and after consummation of the Business Combination;
     
  “PowerUp Board” means PowerUp’s board of directors;
     
  “PowerUp Securities” means the public shares, public warrants and units of PowerUp;
     
  “SPAC” means special purpose acquisition company;
     
  “SPAC Rule Proposals” means the proposed rules issued by the SEC on March 30, 2022 relating to, among other things, disclosures in business combination transactions between SPACs such as PowerUp and private operating companies;
     
  “Sponsor” means SRIRAMA Associates, LLC, a Delaware limited liability company, which is not currently controlled by, nor has substantial ties with, non-U.S. persons. Additionally, all officers and directors of the Company are U.S. citizens and U.S. residents;
     
  “Sponsor Purchase Agreement” means that certain purchase agreement, dated July 14, 2023, by and among PowerUp, Sponsor, and the Original Sponsor;
     
  “Surviving Corporation” means the wholly owned subsidiary of New Visiox following the Business Combination;
     
    ● “TardiMed” means TardiMed Sciences, LLC, a Connecticut limited liability company;
     
  “transfer agent” means Equiniti Trust Company, LLC (f/k/a American Stock Transfer & Trust Company), PowerUp’s transfer agent;
     
  “Treasury Regulations” means the United States Treasury regulations promulgated under the Code;
     
  “Trust Account” means the trust account established at the consummation of PowerUp’s initial public offering that holds the proceeds of the initial public offering and from the sale of private placement units;

 

8
 

 

  “Underwriting Agreement” means the underwriting agreement, dated February 17, 2022, by and between PowerUp and Citigroup;
     
  “units” or “PowerUp units” means the units of PowerUp, each unit representing one Class A ordinary share and one-half of one warrant, with such whole warrant representing the right to acquire one Class A ordinary share, that were offered and sold by PowerUp in its initial public offering and in its concurrent private placement;
     
  “U.S. Holder” means a beneficial owner of a PowerUp Security who or that is, for U.S. federal income tax purposes: an individual who is a citizen or resident of the United States; a corporation (or other entity that is treated as a corporation for U.S. federal income tax purposes) that is created or organized (or treated as created or organized) in or under the laws of the United States or any state thereof or the District of Columbia; an estate whose income is subject to U.S. federal income tax regardless of its source; or a trust if (1) a U.S. court can exercise primary supervision over the administration of such trust and one or more United States persons have the authority to control all substantial decisions of the trust or (2) it has a valid election in place to be treated as a United States person;
     
  “USPTO” means the U.S. Patent and Trademark Office;
     
  “Visiox” means Visiox Pharmaceuticals, Inc., a Delaware corporation;
     
  “Visiox Common Stock” means shares of Visiox common stock, par value $0.001 per share;
     
  “Visiox Stockholder” means a holder of a share of Visiox Common Stock as of immediately prior to the Effective Time;
     
  “Warrant Agreement” means the warrant agreement, dated as of February 17, 2022, by and between PowerUp and Equiniti Trust Company, LLC (f/k/a American Stock Transfer & Trust Company);
     
  “warrants” means the public warrants and the private placement warrants; and
     
  “Working Capital Loans” means the loans, if any, made by PowerUp to the Sponsor, any affiliate of the Sponsor, or certain of the Company’s officers and directors in order to finance transaction costs in connection with the Business Combination.

 

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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

Certain statements in this proxy statement/prospectus may constitute “forward-looking statements” for purposes of the federal securities laws. Our forward-looking statements include, but are not limited to, statements regarding our or our management team’s expectations, hopes, beliefs, intentions or strategies regarding the future, including those relating to the Business Combination. The information included in this proxy statement/prospectus in relation to Visiox has been provided by Visiox and its respective management, and forward-looking statements include statements relating to our and its respective management team’s expectations, hopes, beliefs, intentions or strategies regarding the future, including those relating to the Business Combination. In addition, any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “intends,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “will,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements in this proxy statement/prospectus may include, for example, statements about:

 

  our ability to manage, grow, and diversify our business and execute our business initiatives and strategy;
     
  our public securities’ potential liquidity and trading;
     
  our ability to complete the Business Combination with Visiox or, if we do not consummate such Business Combination, any other initial business combination;
     
  our ability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, the ability of New Visiox to grow and manage growth profitably and retain its key employees; and
     
  satisfaction or waiver of the conditions to the Business Combination including, among others: (i) the approval by our shareholders of the Condition Precedent Proposals being obtained; (ii) approval of certain other agreements and transactions related to the Business Combination by the respective shareholders of PowerUp and Visiox; (iii) the applicable waiting period under the Hart-Scott-Rodino Act of 1976 (the “HSR Act”) relating to the Business Combination Agreement having expired or been terminated; (iv) the approval by Nasdaq of our initial listing application in connection with the Business Combination (not waivable) and (v) that PowerUp has at least $5,000,001 of net tangible assets upon Closing (not waivable);
     
  the amount of redemptions made by public shareholders; and
     
  the future business, operations and financial performance of Visiox and New Visiox.

 

The forward-looking statements contained in this proxy statement/prospectus are based on current expectations, assumptions, and beliefs concerning future developments and their potential effects on us and/or Visiox. There can be no assurance that future developments affecting us and/or Visiox will be those that we and/or Visiox have anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control or the control of Visiox) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to:

 

  the occurrence of any event, change or other circumstances, including the outcome of any legal proceedings that may be instituted against PowerUp and Visiox following the announcement of the Business Combination Agreement and the transactions contemplated therein, that could give rise to the termination of the Business Combination Agreement;
     
  our ability to complete the Business Combination or any other business combination prior to May 23, 2024 (or by the end of any Extension Period if we further extend the period of time to consummate an initial business combination);
     
  risks related to redemptions made by public shareholders;

 

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  the risk that the Business Combination disrupts current plans and operations of Visiox as a result of the announcement and consummation of the Business Combination;
     
  costs related to the Business Combination;
     
  the ability to obtain and/or maintain the listing of New Visiox’s Common Stock and the warrants on Nasdaq, and the potential liquidity and trading of such securities;
     
  changes in applicable laws or regulations;
     
  our success in retaining or recruiting, or changes required in, our officers, key employees or directors following the completion of the Business Combination, and New Visiox’s ability to attract and retain key personnel;
     
  PowerUp officers and directors allocating their time to other businesses and potentially having conflicts of interest with PowerUp’s business or in approving the Business Combination;
     
  macroeconomic conditions, including those resulting from the global COVID-19 pandemic;
     
  failure to maintain adequate operational and financial resources or raise additional capital or generate sufficient cash flows;
     
  cyber-attacks and security vulnerabilities;
     
  risks related to the business, operations, and financial performance of Visiox, including:

 

    Visiox’s limited operating history and single produce approved for commercial sale;
       
    Visiox’s significant losses. expectation to continue to incur significant losses, and lack of history of revenue from product sales;
       
    Visiox’s requirement for substantial additional financing to pursue its business objectives;
       
    the regulatory landscape that applies to our product candidates;
       
    Visiox’s limited experience designing and implementing clinical trials;
       
    delays and disruptions in completing the development of product candidates;
       
    the lengthy and time-consuming FDA regulatory approval process;
       
    the expensive, time-consuming, and difficult to design and implement nature of preclinical studies and clinical trials, and their uncertain outcome.
       
    dependence on third-party collaborators;
       
    being subject to manufacturing risks, any of which could substantially increase costs and limit supply of product candidates;
       
    Visiox’s ability to obtain and maintain adequate patent protection for its product candidates and Omlonti;
       
    lawsuits to protect or enforce Visiox’s intellectual property;
       
    dependence on key personnel;
       
    substantial competition that may result in others discovering, developing, or commercializing products before or more successfully than Visiox;
       
    significant fluctuations of the price of New Visiox Common Stock and New Visiox warrants following the Business Combination; and
       
    New Visiox’s management team having no experience managing a public company; and

 

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  other factors detailed under the section entitled “Risk Factors.”

 

Forward-looking statements should be considered in light of these factors and the factors described elsewhere in this proxy statement/prospectus, including in the sections entitled “Risk Factors,” “Visiox’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and “PowerUp’s Management’s Discussion and Analysis of Financial Condition and Results of Operations.” You should read these factors and the other cautionary statements made in this proxy statement/prospectus as being applicable to all related forward-looking statements wherever they appear in this proxy statement/prospectus. It is not possible to predict or identify all such risks. Neither we nor Visiox undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise, except as may be required under applicable law.

 

Before any shareholder grants its proxy or instructs how its vote should be cast or vote on the proposals to be put to the extraordinary general meeting, or makes a decision with respect to redemption of its public shares, such shareholder should be aware that the occurrence of the events described in the “Risk Factors” section and elsewhere in this proxy statement/prospectus may adversely affect us.

 

QUESTIONS AND ANSWERS FOR SHAREHOLDERS OF PowerUp

 

The questions and answers below highlight only selected information from this proxy statement/prospectus and only briefly address some commonly asked questions about the proposals to be presented at the extraordinary general meeting, including with respect to the Business Combination. The following questions and answers do not include all the information that may be important to PowerUp’s shareholders. We urge shareholders to read this proxy statement/prospectus, including the annexes and the other documents referred to herein, carefully and in their entirety to fully understand the Business Combination and the voting procedures for the extraordinary general meeting, which will be held at [●], on [●], at the offices of [●] and virtually via live webcast at [●], unless the extraordinary general meeting is adjourned.

 

Q: Why am I receiving this proxy statement/prospectus?
   
A: PowerUp shareholders are being asked to consider and vote upon, among other proposals, a proposal to approve and adopt the Business Combination Agreement and approve the transactions contemplated thereby, including the Business Combination. In accordance with the terms and subject to the conditions of the Business Combination Agreement, among other things, PowerUp will complete the Domestication and, after the Domestication, on the Closing Date, the parties will complete the Business Combination, pursuant to which each share of Visiox Common Stock issued and outstanding immediately prior to the Effective Time, shall be converted into the right to receive the number of shares of duly authorized, validly issued, fully paid and nonassessable shares of New Visiox Common Stock equal to the quotient obtained by dividing (x) the quotient obtained by dividing (i) the Merger Consideration by (ii) ten dollars ($10.00) by (y) the number of shares of Visiox Common Stock that are issued and outstanding immediately prior to the Effective Time. Holders of Visiox Common Stock and the Sponsor will also receive the right to earnout consideration, in the form of New Visiox Common Stock, as further described herein. For further details, see “Business Combination Proposal — Consideration to Visiox Stockholders in the Business Combination.”

 

A copy of the Business Combination Agreement is attached to this proxy statement/prospectus as Annex A and you are encouraged to read the Business Combination Agreement in its entirety.

 

The approval of each of the Business Combination Proposal, the Advisory Charter Proposals, the Omnibus Incentive Plan Proposal, the Nasdaq Proposal, the Election of Directors Proposal, and the Adjournment Proposal requires an ordinary resolution, being the affirmative vote of at least a majority of the votes cast by the holders of the issued ordinary shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter, and each of the Domestication Proposal and Organizational Documents Proposal requires a special resolution under the Cayman Islands Companies Act, being the affirmative vote of at least a two-thirds (2/3) majority of the votes cast by the holders of the issued ordinary shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter.

 

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In connection with the Domestication, prior to the Closing Date, (i) each issued and outstanding Class A ordinary share of PowerUp will convert by operation of law, on a one-for-one basis, into shares of New Visiox Class A Common Stock; and (ii) each issued and outstanding warrant to purchase Class A ordinary shares of PowerUp will automatically represent the right to purchase one share of New Visiox Class A Common Stock at an exercise price of $11.50 per share of New Visiox Class A Common Stock on the terms and conditions set forth in the Warrant Agreement. Immediately following the Domestication, (i) the New Visiox Class A Common Stock will be reclassified as New Visiox Common Stock; (ii) the governing documents of PowerUp will be amended and restated and become the certificate of incorporation and the bylaws of New Visiox as described in this proxy statement/prospectus; and (iii) the form of the certificate of incorporation and the bylaws will be appropriately adjusted to give effect to any amendments contemplated by the form of certificate of incorporation or the bylaws that are not adopted and approved by the PowerUp shareholders, other than the amendments to the PowerUp governing documents that are contemplated by the Organizational Documents Proposal, which is a condition to the Closing of the Business Combination. Each issued and outstanding PowerUp unit that has not been previously separated into the underlying Class A ordinary shares and the underlying one-half of one PowerUp warrant prior to the Domestication will be cancelled and will entitle the holder thereof to one share of New Visiox Common Stock and one-half of one New Visiox warrant, with each whole warrant representing the right to purchase one share of New Visiox Common Stock at an exercise price of $11.50 per share on the terms and subject to the conditions set forth in the Warrant Agreement. No fractional warrants will be issued upon the separation of units and only whole warrants will trade. Accordingly, unless you hold at least two units of PowerUp, you will not be able to receive or trade a warrant when the units are separated. See “Domestication Proposal” for more information.

 

The provisions of the Proposed Governing Documents will differ in certain material respects from the Existing Governing Documents. Please see “What amendments will be made to the Existing Governing Documents of PowerUp?” below.

 

THE VOTE OF SHAREHOLDERS IS IMPORTANT. SHAREHOLDERS ARE ENCOURAGED TO VOTE AS SOON AS POSSIBLE AFTER CAREFULLY REVIEWING THIS PROXY STATEMENT/PROSPECTUS.

 

Q: What proposals are shareholders of PowerUp being asked to vote upon?
   
A: At the extraordinary general meeting, PowerUp is asking holders of its ordinary shares to consider and vote upon fifteen (15) separate proposals:

 

  a proposal to approve and adopt by ordinary resolution the Business Combination Agreement and the transactions contemplated thereby, including the Business Combination;
     
  a proposal to approve by special resolution the Domestication;
     
  a proposal to approve by special resolution the Organizational Documents Proposal;
     
  eight (8) separate proposals to vote on, on a non-binding advisory basis by ordinary resolution, certain material differences between the Existing Governing Documents and the Proposed Governing Documents:

 

    to authorize the change in the authorized share capital of PowerUp from $35,500 divided into (i) 300,000,000 Class A ordinary shares, par value $0.0001 per share, 50,000,000 Class B ordinary shares, par value $0.0001 per share, and 5,000,000 preference shares, par value $0.0001 per share, to (ii) [●] shares of New Visiox Common Stock and [●] shares of New Visiox Preferred Stock;
       
    to permit removal of a director with or without cause by the affirmative vote of the holders of at least a majority of the voting power of all of the outstanding shares of voting stock of New Visiox entitled to vote at an election of directors, voting together as a single class;
       
    to provide that, subject to the rights of holders of any series of preferred stock, the number of directors will be fixed from time to time by a majority of the New Visiox Board;
       
    to eliminate the ability of New Visiox stockholders to take action by written consent in lieu of a meeting;

 

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    to provide that the Proposed Bylaws may be amended, altered, repealed or adopted either (x) by the affirmative vote of a majority of the New Visiox Board then in office or (y) by the approval of at least a majority of the voting power of all of the then-outstanding shares of voting stock of New Visiox;
       
    to provide that the Proposed Charter may be amended, altered, repealed or adopted by the approval of at least two-thirds of the voting power of all of the then-outstanding shares of voting stock of New Visiox for amendments for certain provisions of the Proposed Charter relating to: (i) classification and election of the PowerUp Board, removal of directors from office, and filling vacancies on the New Visiox Board; (ii) exculpation of personal liability of a director of New Visiox and indemnification of persons serving as directors or officers of New Visiox; and (iii) amendments to the Proposed Bylaws;
       
    to provide that, unless New Visiox otherwise consents in writing, the Court of Chancery for the State of Delaware (or, in the event that the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware) will be the sole and exclusive forum for certain stockholder actions and the federal district courts of the United States shall be the exclusive forum for claims arising out of the Securities Act, provided that the exclusive forum provision in the Proposed Charter does not apply to claims arising out of the Exchange Act, for which the federal district courts of the United States are the exclusive forum;
       
    to provide that New Visiox’s existence is perpetual;

 

  a proposal to approve by ordinary resolution the issuance of shares of New Visiox Common Stock in connection with the Business Combination in compliance with the applicable listing rules of Nasdaq;
     
  a proposal to approve and adopt by ordinary resolution the 2024 Plan;
     
  a proposal to approve, as an ordinary resolution the election of five directors to serve staggered terms on New Visiox’s board of directors; and
     
  a proposal to approve by ordinary resolution the adjournment of the extraordinary general meeting to a later date or dates, if necessary or convenient, to, among other things, permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of one or more proposals at the extraordinary general meeting.

 

If our shareholders do not approve each of the Condition Precedent Proposals, then unless certain conditions in the Business Combination Agreement are waived by the applicable parties to the Business Combination Agreement, the Business Combination Agreement could terminate and the Business Combination may not be consummated.

 

For more information, please see “Business Combination Proposal,” “Domestication Proposal,”, “Organizational Documents Proposal”,Advisory Charter Proposals,” “Nasdaq Proposal,” “Omnibus Incentive Plan Proposal,” “Election of Directors Proposal” and “Adjournment Proposal.”

 

PowerUp will hold the extraordinary general meeting to consider and vote upon these proposals. This proxy statement/prospectus contains important information about the Business Combination and the other matters to be acted upon at the extraordinary general meeting. Shareholders of PowerUp should read this proxy statement/prospectus carefully.

 

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After careful consideration, the PowerUp Board has determined that the Business Combination Proposal, the Domestication Proposal, the Organizational Documents Proposal, each of the Advisory Charter Proposals, the Nasdaq Proposal, the Omnibus Incentive Plan Proposal, the Election of Directors Proposal and the Adjournment Proposal are in the best interests of PowerUp and its shareholders and unanimously recommends that you vote or give instruction to vote “FOR” each of those proposals.

 

The existence of financial and personal interests of one or more of PowerUp’s directors may result in a conflict of interest on the part of such director(s) between what such director(s) may believe is in the best interests of PowerUp and its shareholders and what such director(s) may believe is best for themselves in determining to recommend that shareholders vote for the proposals. In addition, PowerUp’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See “Business Combination Proposal — Interests of PowerUp’s Directors and Executive Officers in the Business Combination” for a further discussion of these considerations.

 

Q: Are the proposals conditioned on one another?
   
A: Yes. The Business Combination is conditioned on the approval of each of the Condition Precedent Proposals at the extraordinary general meeting. Each of the Condition Precedent Proposals is cross-conditioned upon the approval of each other. The Advisory Charter Proposals are conditioned upon the approval of the Organizational Documents Proposal. The Adjournment Proposal is not conditioned upon the approval of any other proposal.
   
Q: Why is PowerUp proposing the Business Combination?
   
A: PowerUp is a blank check company incorporated on February 9, 2021, as a Cayman Islands exempted company and formed for the purpose of a Business Combination, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses, which is referred to throughout this proxy statement/prospectus as the initial business combination. Based on PowerUp’s business activities, it is a “shell company” as defined under the Exchange Act because it has no operations and nominal assets consisting almost entirely of cash.

 

Visiox is a commercial and late-stage pharmaceutical company advancing the standard of care in ophthalmology. Visiox is focused on addressing large markets that are poorly managed, and we currently have treatments for glaucoma and pain and inflammation after ocular surgery. Visiox’s lead program Omlonti®, is an FDA approved New Chemical Entity (NCE) for the reduction in intraocular pressure (IOP) in patients with open-angle glaucoma or ocular hypertension. Visiox anticipates launching Omlonti® in the first quarter of 2024. Visiox’s goal is to improve compliance and clinical outcomes in large disease states through the use of novel and trusted molecules formulated with innovative, proprietary delivery systems. These systems include Visiox’s Tear Act™ and Tight Junction Modulation Micellar Platform (TJM™). Through research, development, distribution, and strategic acquisitions, Visiox aims to introduce additional cutting-edge products that contribute to the advancement of the standard of care in ophthalmology.

 

Based on its due diligence investigations of Visiox and the industry in which it operates, including the financial and other information provided by Visiox in the course of PowerUp’s due diligence investigations, the PowerUp Board believes that the Business Combination with Visiox is in the best interests of PowerUp and its shareholders and presents an opportunity to increase shareholder value. However, there is no assurance of this. See “Business Combination Proposal — The PowerUp Board’s Reasons for the Business Combination.”

 

Although the PowerUp Board believes that the Business Combination with Visiox presents a unique business combination opportunity and is in the best interests of PowerUp and its shareholders, the PowerUp Board did consider certain potentially material negative factors in arriving at that conclusion. These factors are discussed in greater detail in the sections entitled “Business Combination Proposal — The PowerUp Board’s Reasons for the Business Combination” and “Risk Factors — Risks Related to Visiox.”

 

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Q: Did the PowerUp Board obtain a third-party valuation or fairness opinion in determining whether or not to proceed with the Business Combination?
   
A: Yes. Although PowerUp is not required to obtain an opinion from an independent investment banking firm that is a member of the Financial Industry Regulatory Authority (“FINRA”) or from an independent accounting firm that the transaction being contemplated is fair to PowerUp from a financial point of view unless PowerUp completes an initial business combination with an affiliated entity, the PowerUp Board received an oral opinion of The Mentor Group, Inc. (“Mentor”), which opinion was confirmed by Mentor’s written opinion dated December 19, 2023) as to the fairness, from a financial point of view, to PowerUp of the shares of New Visiox Common Stock to be issued on the Closing Date (including the Visiox Earnout Shares) as the consideration (the “Business Combination Consideration”) in the Business Combination to the holders of the shares of Visiox Common Stock (other than shares held in the treasury of Visiox and any Dissenting Shares), as of Mentor, based upon and subject to the procedures followed, assumptions made, qualifications and limitations on the review undertaken and other matters considered by Mentor in preparing its opinion. Mentor’s opinion should not be construed as creating any fiduciary duty on Mentor’s part to any party or entity. Mentor’s opinion was not intended to be, and does not constitute, advice or a recommendation to PowerUp or Visiox, or the board of directors or any shareholder of either PowerUp or Visiox as to how to act or vote with respect to the Business Combination or related matters. This opinion is discussed in greater detail in the section entitled “Business Combination Proposal — Opinion of Financial Advisor to PowerUp” and a copy of the fairness opinion is attached to this proxy statement/prospectus as Annex I.
   
Q: What will Visiox’s stockholders receive in return for the Business Combination with PowerUp?
   
A: Following the consummation of the Domestication, and after giving effect to the Business Combination, Visiox will be a wholly owned subsidiary of New Visiox. In accordance with the terms and subject to the conditions of the Business Combination Agreement, at Closing, each share of common stock of Visiox issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive the number of shares of duly authorized, validly issued, fully paid and nonassessable shares of common stock of New Visiox (“New Visiox Common Stock”) equal to the quotient obtained by dividing (x) the quotient obtained by dividing (i) the Merger Consideration by (ii) ten ($10.00) by (y) the number of shares of Visiox Common Stock that are issued and outstanding immediately prior to the Effective Time. Holders of Visiox Common Stock will also receive the right to earnout consideration as further described herein.
   
Q: How will New Visiox be managed following the Business Combination?
   
A: Following the Closing, it is expected that the current management of Visiox will become the management of New Visiox, and the New Visiox Board will consist of five directors, which will be divided into three classes (Class I, II and III) with each consisting of one, two, and two directors, respectively. Pursuant to the Business Combination Agreement, the New Visiox Board will consist of [●]. Please see “Management of New Visiox Following the Business Combination” for further information.
   
Q: What equity stake will current PowerUp shareholders and current equity holders of Visiox hold in New Visiox immediately after the consummation of the Business Combination?
   
A: As of the date of this proxy statement/prospectus, there are 8,991,229 ordinary shares issued and outstanding, which includes an aggregate of 7,187,500 Class A ordinary shares held by the Sponsor and the Original Sponsor, and no Class B ordinary shares issued and outstanding. In addition, as of the date of this proxy statement/prospectus, there is outstanding an aggregate of 24,138,333 warrants to acquire ordinary shares, comprised of a total of 9,763,333 private placement warrants held by the Sponsor and the Original Sponsor, purchased simultaneously with the consummation of the initial public offering and 14,375,000 public warrants. Each whole warrant entitles the holder thereof to purchase one Class A ordinary share and, following the Domestication, will entitle the holder thereof to purchase one share of New Visiox Common Stock. Therefore, as of the date of this proxy statement/prospectus (without giving effect to the Business Combination and assuming that none of PowerUp’s outstanding public shares are redeemed in connection with the Business Combination), PowerUp’s fully diluted share capital would be 33,129,562 ordinary shares.

 

The following table illustrates varying ownership levels in New Visiox Common Stock immediately following the consummation of the Business Combination based on the varying levels of redemptions by the public shareholders, including the dilutive effect of outstanding warrants, and the following additional assumptions: (i) no public shares are redeemed in the no redemption scenario, and all 1,803,729 public shares are redeemed in the maximum redemption scenario, assuming PowerUp will only proceed with the Business Combination if it will have net tangible assets of at least $5,000,001 upon consummation of the Business Combination and a majority of the shares voted at the extraordinary general meeting are voted in favor of the Business Combination; (ii) the Earnout Shares have not yet been earned; and (iii) all the New Visiox warrants to purchase New Visiox Common Stock that will be outstanding immediately following Closing have been exercised for cash. See “Unaudited Pro Forma Condensed Combined Financial Information” for more details. If the actual facts differ from these assumptions, the ownership percentages in New Visiox will be different.

 

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   Share Ownership in New Visiox (1) 
   1   2   3 
Issued and Outstanding Share Basis  No Redemption   % Owned   50% Redemption   % Owned   Maximum Redemption   % Owned 
PowerUp Public Shares subject to redemption   1,803,729    9.0%   901,865    4.7%   -    -%
PowerUp Public Shares not subject to redemption (3)   7,187,500    36.0%   7,187,500    37.7%   7,187,500    39.5%
Visiox Shareholders (2)   8,000,000    40.0%   8,000,000    41.9%   8,000,000    44.0%
Working Capital Loan Shares   1,000,000    5.0%   1,000,000    5.2%   1,000,000    5.5%
Bridge Loan Shares   2,000,000    10.0%   2,000,000    10.5%   2,000,000    11.0%
Pro Forma common stock at September 30, 2023   19,991,229    100.0%   19,089,365    100.0%   18,187,500    100.0%
                               
Potential sources of dilution:                              
Public Warrants (4)   14,375,000    71.9%   14,375,000    75.3%   14,375,000    79.0%
Private Placement Warrants (5)   9,763,333    48.8%   9,763,333    51.1%   9,763,333    53.7%
First Earnout Share Payment (6)   2,000,000    10.0%   2,000,000    10.5%   2,000,000    11.0%
Second Earnout Share Payment (6)   2,000,000    10.0%   2,000,000    10.5%   2,000,000    11.0%
Third Earnout Share Payment (6)   2,000,000    10.0%   2,000,000    10.5%   2,000,000    11.0%

 

 

(1) For further details, see “Business Combination Proposal — Consideration to Visiox Stockholders in the Business Combination.”

(2) Comprises the shares of New Visiox Common Stock to be issued to the Visiox Stockholders at Closing.

(3) Comprises 2,870,000 Class A ordinary shares held by the Original Sponsor and 4,317,500 Class A ordinary shares held by the Sponsor.

(4) Assumes exercise of 14,375,000 Public Warrants to purchase New Visiox Class A Common Stock at an exercise price of $11.50 per share.

(5) Assumes exercise of 9,763,333 Private Placement Warrants of New Visiox Class A Common Stock at an exercise price of $11.50 per share.

(6) Assumes the earnout measurements will be met per the Business Combination Agreement:

 

  In the Event that the First Commercial Sale of Omlonti (omidenepag isopropyl ophthalmic solution) 0.002% occurs within twelve (12) months of the Closing Date (the “Launch Target”), New Visiox shall issue to each Visiox Stockholders, such Visiox Stockholder’s Pro Rata Share of 1,000,000 Earnout Shares and to the Sponsor 1,000,000 Earnout Shares (the “Launch Earnout Share Payment”);
     
 

Beginning in the first fiscal year following the Visiox Stockholders and Sponsor earning the Launch Earnout Share Payment, (the $12.50 Earnout Eligibility Date”), New Visiox shall issue to each Visiox Stockholders, such Visiox Stockholder’s Pro Rata Share of 1,000,000 Earnout Shares and to the Sponsor 1,000,000 Earnout Shares (the “$12.50 Earnout Share Payment”) in the event that the VWAP of the Purchaser Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) (the “First Share Price Target”) for twenty (20) out of any thirty (30) consecutive Trading Days during the period beginning on the Closing Date and ending on the 36-month anniversary of the Closing Date (such period the “Earnout Period”).

 

In the event that the First Share Price Target achieved prior to the $12.50 Earnout Eligibility Date, the $12.50 Earnout Share Payment shall be earned on the $12.50 Earnout Eligibility Date. In the event the First Share Price Target was achieved on or after the $12.50 Earnout Eligibility Date, the $12.50 Earnout Share Payment shall be earned on the date on which the First Share Price Target was achieved.

     
 

(iii) Beginning in the first fiscal year following Visiox Stockholders and Sponsor earning the $12.50 Earnout Share Payment (the “$15.00 Earnout Eligibility Date”), New Visiox shall issue to each of the Visiox Stockholders such Visiox Stockholder’s Pro Rata Share of 1,000,000 Earnout Shares and the Sponsor shall be issued 1,000,000 Earnout Shares (the “$15.00 Earnout Share Payment”, and together with the Launch Earnout Share Payment and the $12.50 Earnout Share Payment, the “Earnout Share Payments”) in the event that the VWAP of the Purchaser Common Stock equals or exceeds $15.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) (the “Second Share Price Target,” and together with the Launch Target and the First Share Price Target, the “Earnout Targets”) for twenty (20) out of any thirty (30) consecutive Trading Days during Earnout Period.

 

In the event the Second Share Price Target was achieved prior to the $15.00 Earnout Eligibility Date, the $15.00 Earnout Share Payment shall be earned on the $15.00 Earnout Eligibility Date. In the event the Second Share Price Target was achieved on or after the $15.00 Earnout Eligibility Date, the $15.00 Earnout Share Payment shall be earned on the date on which the Second Share Price Target was achieved.

 

17
 

 

Q: How is the payment of the deferred underwriting commissions going to affect the amount left in the Trust Account upon the completion of the Business Combination?
   
A:

Citigroup was paid a cash underwriting discount of $0.20 per unit, or $5,000,000 in the aggregate at the closing of the initial public offering. Citigroup agreed to defer the cash underwriting discount of $0.20 per share related to the over-allotment to be paid upon the closing of the Business Combination ($750,000 in the aggregate). In addition, Citigroup was originally entitled to a deferred underwriting commissions of $0.35 per unit, or $10,062,500 from the closing of the initial public offering. The total deferred fee was $10,812,500 consisting of the $10,062,500 deferred portion and the $750,000 cash discount was agreed to be deferred until Business Combination. The deferred fee was to become payable to the underwriters from the amounts held in the Trust Account solely if the Company completes a Business Combination, subject to the terms of the underwriting agreement.

 

On June 28, 2023, the underwriters agreed to waive their entitlement to the deferred underwriting commissions of $10,812,500 in accordance with the Underwriting Agreement. As a result, $10,812,500 was recorded to additional paid-in capital in relation to the waiver of the deferred underwriting discount in the accompanying financial statements. As a result of the deferral, there will be no payment of the deferred underwriting commissions, and the amount left in the Trust Account upon the completion of the Business Combination will not be affected.

 

Q: How has the announcement of the Business Combination affected the trading price of the PowerUp securities?
   
A: On December 26, 2023, the trading date preceding the announcement of the Business Combination, the closing prices per unit, public share, and public warrant as reported by Nasdaq were $10.91, $11.32, and $0.22, respectively. As of [●], the record date for the extraordinary general meeting, the closing price for each unit, ordinary share and redeemable warrant was $[●], $[●], and $[●], respectively. Holders of PowerUp’s securities should obtain current market quotations for the securities. The market price of PowerUp’s securities could vary at any time prior to Closing.

 

Q: Why is PowerUp proposing the Domestication?
   
A: The PowerUp Board believes that there are significant advantages to us that will arise as a result of a change of our domicile to Delaware. Further, the PowerUp Board believes that any direct benefit that the DGCL provides to a corporation also indirectly benefits its stockholders, who are the owners of the corporation. The PowerUp Board believes that there are several reasons why a transfer by way of continuation to Delaware is in the best interests of PowerUp and its shareholders, including, (i) the prominence, predictability and flexibility of the DGCL, (ii) Delaware’s well-established principles of corporate governance, and (iii) the increased ability for Delaware corporations to attract and retain qualified directors. Each of the foregoing are discussed in greater detail in the section entitled “Domestication Proposal — Reasons for the Domestication.”
   
  To effect the Domestication, PowerUp will file an application for deregistration with the Cayman Islands Registrar of Companies, together with the necessary accompanying documents, and file a certificate of corporate domestication and a certificate of incorporation with the Secretary of State of the State of Delaware, under which PowerUp will be domesticated and continue as a Delaware corporation.
   
  The approval of the Domestication Proposal is a condition to closing the Business Combination under the Business Combination Agreement. The approval of the Domestication Proposal requires a special resolution under the Cayman Islands Companies Act, being the affirmative vote of at least a two-thirds (2/3) majority of the votes cast by the holders of the issued ordinary shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting, and otherwise will have no effect on a particular proposal.
   
Q: What amendments will be made to the Existing Governing Documents of PowerUp?
   
A: The consummation of the Business Combination is conditioned upon, among other things, the Domestication. Accordingly, in addition to voting on the Business Combination, PowerUp’s shareholders also are being asked to consider and vote upon a proposal to approve the Domestication, and replace PowerUp’s Existing Governing Documents, in each case, under the Cayman Islands Companies Act with the Proposed Governing Documents, in each case, under the DGCL, which differ from the Existing Governing Documents in the following material respects:

 

18
 

 

    Existing Governing Documents   Proposed Governing Documents
Authorized Shares
(Advisory Charter
Proposal 4A
)
  The share capital under the Existing Governing Documents is US$35,500 divided into 300,000,000 Class A ordinary shares, par value US$0.0001 per share, 50,000,000 Class B ordinary shares, par value US$0.0001 per share and 5,000,000 preference shares, par value US$0.0001 per share.  

Under the Proposed Charter, New Visiox will be authorized to issue [●] shares of capital stock, consisting of (a) [●] shares of common stock and (b) [●] shares of preferred stock.

         
    See paragraph 5 of the PowerUp Amended and Restated Memorandum of Association.   See Article IV of the Proposed Charter.
         
Authorize the Board of Directors to Issue Preferred Stock Without Stockholder Consent
(Advisory Charter
Proposal 4B
)
  The Existing Governing Documents authorize the issuance of up to 5,000,000 preference shares with such designation, rights and preferences as may be determined from time to time by the PowerUp Board. Accordingly, PowerUp Board is empowered under the Existing Governing Documents, without shareholder approval, to issue preference shares with dividend, or other distribution, voting, return of capital or other rights which could adversely affect the voting power or other rights of the holders of ordinary shares.   The Proposed Charter will authorize the New Visiox Board to issue preferred stock from time to time in one or more series, and, with respect to each series, to establish the number of shares in each such series, to fix the designation, powers (including voting powers), preferences and relative, participating, optional or other special rights, if any, of each such series and any qualifications, limitations or restrictions thereof, and, subject to the rights of such series, and to increase or decrease the number of shares of any such series.
         
    See paragraph 5 of the PowerUp Amended and Restated Memorandum of Association and Article 3 of the PowerUp Amended and Restated Articles of Association.   See Article IV of the Proposed Charter.
         
Stockholder Removal of Directors
(Advisory Charter
Proposal 4C
)
  The Existing Governing Documents provide that the members of the PowerUp Board may be removed from office prior to the consummation of PowerUp’s initial business combination only by the affirmative vote of the holders of a majority of the Class B ordinary shares, and following the consummation of PowerUp’s initial business combination, by ordinary resolution.   The Proposed Charter will provide that a director may be removed with or without cause by the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote an election of directors.
         
    See Article 29 of the PowerUp Amended and Restated Articles of Association.   See Section 5.05 of the Proposed Charter.

 

19
 

 

    Existing Governing Documents   Proposed Governing Documents
Number of Directors (Advisory Charter Proposal 4D)   The Existing Governing Documents provide that the number of directors of PowerUp may be increased or reduced by an ordinary resolution, being a resolution passed by a simple majority of the holders of ordinary shares, who, being present in person or by proxy and entitled to vote, cast votes at a general meeting or a resolution passed in writing unanimously.   The Proposed Charter will provide that the number of directors will be fixed from time to time by a majority of the New Visiox Board.
         
    See Article 27 of the PowerUp Amended and Restated Articles of Association.   See Section 5.02 of the Proposed Charter.
         
Shareholder/Stockholder Written Consent In Lieu of a Meeting
(Advisory Charter
Proposal 4E
)
  The Existing Governing Documents provide that resolutions may be passed by a vote in person, by proxy at a general meeting, or by unanimous written resolution.   The Proposed Charter will allow stockholders to vote in person or by proxy at a meeting of stockholders, but prohibit the ability of stockholders to act by written consent in lieu of a meeting.
         
    See Articles 22 and 23 of the PowerUp Amended and Restated Articles of Association.   See Section 7.01 of the Proposed Charter.
         
Amend the Bylaws
(Advisory Charter
Proposal 4F
)
  PowerUp does not have bylaws; however, the Current Articles include provisions similar to the Proposed Bylaws and amendments to the Current Articles (save for Article 29 of the Current Articles) require a special resolution, being a resolution passed by a majority of two-thirds of the holders of ordinary shares who, being present in person or by proxy and entitled to vote, cast votes at a general meeting (or a resolution passed in writing unanimously).   The Proposed Charter will authorize the New Visiox Board to adopt, amend, alter, or repeal the Proposed Bylaws. The Proposed Bylaws can also be adopted, amended, altered or repealed by the stockholders, provided that any stockholder amendment to the Proposed Bylaws will require approval of at least a majority of the voting power of all of then-outstanding shares of voting stock of New Visiox.
         
    See Article 18 of the PowerUp Amended and Restated Articles of Association.   See Article VIII of the Proposed Charter.

 

    Existing Governing Documents   Proposed Governing Documents
Amend Certain Charter Provisions
(Advisory Charter
Proposal 4G
)
  The Existing Governing Documents provide that, with limited exceptions, amendments to the PowerUp Amended and Restated Articles require a special resolution, being a resolution passed by a majority of two-thirds of the holders of ordinary shares who, being present in person or by proxy and entitled to vote, cast votes at a general meeting (or a resolution passed in writing unanimously).   The Proposed Charter will provide that the affirmative vote of the holders of at least two-thirds (66 2/3%) of the voting power of all of the then outstanding shares of voting stock of New Visiox will be required for amendments of certain provisions of the Proposed Charter relating to: (i) classification and election of the PowerUp Board, removal of directors from office, and filling vacancies on the New Visiox Board, (ii) exculpation of personal liability of a director of New Visiox and indemnification of persons serving as directors or officers of New Visiox, and (iii) amendments to the Proposed Bylaws.
         
    See Article 18 of the PowerUp Amended and Restated Articles of Association.   See Article XI of the Proposed Charter.

 

20
 

 

Exclusive Forum for Stockholder Actions (Advisory Charter Proposal 4H)   The Existing Governing Documents do not include an exclusive jurisdiction provision.   The Proposed Charter and Proposed Bylaws provide that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for the following types of actions or proceedings under Delaware statutory or common law: (i) any derivative action or proceeding brought on behalf of New Visiox; (ii) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any of New Visiox’s current or former directors, officers, or other employees to New Visiox or its stockholders; (iii) any action or proceeding asserting a claim against New Visiox or any of its current or former directors, officers, or other employees, arising out of or pursuant to any provision of the Delaware General Corporation Law, the Proposed Charter or the Proposed Bylaws; (iv) any action or proceeding to interpret, apply, enforce, or determine the validity of the Proposed Charter or the Proposed Bylaws; (v) any action or proceeding as to which the DGCL confers jurisdiction to the Court of Chancery of the State of Delaware; and (vi) any action asserting a claim against New Visiox or any of its directors, officers, or other employees governed by
the internal affairs doctrine, in all cases to the fullest extent permitted by law and subject to the court’s having personal jurisdiction over the indispensable parties named as defendants. These provisions would not apply to suits brought to enforce a duty or liability created by the Exchange Act. Furthermore, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all such Securities Act actions. Accordingly, both state and federal courts have jurisdiction to entertain such claims. To prevent having to litigate claims in multiple jurisdictions and the threat of inconsistent or contrary rulings by different courts, among other considerations, the Proposed Charter and Proposed Bylaws will further provide that the federal district courts of the United States of America will be the exclusive forum for resolving any complaint asserting a cause or causes of action arising under the Securities Act, including all causes of action asserted against any defendant to such complaint. For the avoidance of doubt, this provision is intended to benefit and may be enforced by New Visiox, its officers and directors, the underwriters to any offering giving rise to such complaint, and any other professional entity whose profession gives authority to a statement made by that person or entity and who has prepared or certified any part of the documents underlying this offering
         
        See Article IX of the Proposed Charter.
         
Provisions Related to Status as Blank Check Company (Advisory Charter Proposal 4G)   The Existing Governing Documents set forth various provisions related to our status as a blank check company prior to the consummation of an initial business combination and provide that if we do not consummate an initial business combination (as defined in the Existing Governing Documents) by May 23, 2024 (or by the end of any Extension Period if we further extend the period of time to consummate an initial business combination), PowerUp will cease all operations except for the purposes of winding up and will redeem the shares issued in PowerUp’s initial public offering and liquidate its Trust Account.   The Proposed Governing Documents do no