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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): July 21, 2023
Deep
Medicine Acquisition Corp.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-40970 |
|
85-3269086 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
No.) |
595
Madison Avenue, 12th Floor
New
York, NY |
|
10017 |
(Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (917) 289-2776
N/A
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under
any of the following provisions:
☒ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Class
A Common Stock, par value $0.0001 per share |
|
DMAQ |
|
The
Nasdaq Stock Market LLC |
|
|
|
|
|
Rights,
each exchangeable into one-tenth of one share of Class A Common Stock |
|
DMAQR |
|
The
Nasdaq Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item
1.01 Entry into a Material Definitive Agreement.
Amended
and Restated Merger Agreement
This
section describes the material provisions of the Restated Merger Agreement (as defined below) but does not purport to describe all of
the terms thereof. The following summary is qualified in its entirety by reference to the complete text of the Restated Merger Agreement,
a copy of which is attached hereto as Exhibit 2.1. The Company’s stockholders and other interested parties are urged to read such
agreement in its entirety. Unless otherwise defined herein, the capitalized terms used below are defined in the Restated Merger Agreement.
As
previously disclosed in the Current Report on Form 8-K of Deep Medicine Acquisition Corp., a Delaware corporation (the “Company”),
filed with the U.S. Securities and Exchange Commission (the “SEC”) on April 6, 2023, on March 31, 2023, the Company
entered into an Agreement and Plan of Merger (the “Original Merger Agreement”) with DMAC Merger Sub Inc., a Nevada
corporation and newly formed wholly-owned subsidiary of the Company (“Merger Sub”), Bright Vision Sponsor LLC, a Delaware
limited liability company, solely in the capacity as the representative from and after the effective time of the Merger (as defined in
the Restated Merger Agreement) (the “Effective Time”) for the stockholders of the Company (other than the TruGolf
stockholders) (the “Purchaser Representative”), TruGolf, Inc., a Nevada corporation (“TruGolf”)
and Christopher Jones, an individual, solely in his capacity as the representative from and after the Effective Time for the TruGolf
stockholders (the “Seller Representative”).
On
July 21, 2023, the Company, Merger Sub, the Purchaser Representative and the Seller Representative, entered into an Amended
and Restated Agreement and Plan of Merger (the “Restated Merger Agreement”) pursuant to which the Original Merger
Agreement was amended and restated to provide, among other things, that (i) contingent earnout shares will be issued after the Closing,
if and when earned, upon the Company meeting the milestones specified in the Restated Merger Agreement, rather than being issued at the
closing of the merger and being placed into escrow subject to potential forfeiture; and (ii) the per share price of the Company’s
common stock used in the calculation of the number of shares to be issued to the Sellers as merger consideration shall be $10.00, as
opposed to the price at which the Company redeems the shares of common stock held by its public stockholders in connection with the closing
of this business combination.
Important
Information About the Business Combination and Where to Find It
In
connection with the Restated Merger Agreement and the proposed business combination with TruGolf (the “Business Combination”),
the Company intends to file with the U.S. Securities and Exchange Commission (the “SEC”) a Registration Statement
on Form S-4 (the “Registration Statement”), which will include a prospectus with respect to the Company’s securities
to be issued in connection with the Business Combination, and a preliminary proxy statement and a definitive proxy statement with respect
to the solicitation of proxies for the special meeting of stockholders of the Company to vote on the Business Combination (collectively,
the “Proxy Statement”). A full description of the terms of the Merger Agreement and the Business Combination will
be provided in the Registration Statement. The Company urges its investors, stockholders and other interested persons to read, when available,
the preliminary Registration Statement, including the Proxy Statement as well as other documents filed with the SEC because these documents
will contain important information about the Company, TruGolf and the Business Combination. The definitive Proxy Statement will be mailed
to stockholders of the Company as of a record date to be established for voting on the Business Combination. Once available, stockholders
will also be able to obtain a copy of the Proxy Statement, and other documents filed with the SEC, without charge, by directing a request
to: Deep Medicine Acquisition Corp. 595 Madison Avenue, 12th Floor, New York, NY 10017, (917) 289-2776 or on the SEC’s website
at www.sec.gov.
Participants
in the Solicitation
The
Company and TruGolf, and their respective directors and executive officers, may be deemed participants in the solicitation of proxies
of the Company’s stockholders in respect of the proposed Business Combination. The Company’s stockholders and other interested
persons may obtain more detailed information about the names and interests of these directors and officers of the Company and TruGolf
in the Business Combination will be set forth in filings with the SEC, including when filed, the Registration Statement. These documents
can be obtained free of charge from the sources specified above and at the SEC’s web site at www.sec.gov.
No
Offer or Solicitation
This
communication shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of
the proposed business combination. This communication shall not constitute an offer to sell or the solicitation of an offer to buy any
securities pursuant to the proposed transactions or otherwise, nor shall there be any sale of securities in any jurisdiction in which
the offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction.
No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act,
or a valid exemption from registration thereunder.
Forward-Looking
Statements
This
Current Report on Form 8-K contains certain “forward-looking statements” within the meaning of the “safe harbor”
provisions of the Private Securities Litigation Reform Act of 1995 with respect to the proposed business combination. These forward-looking
statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,”
“estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,”
“may,” “should,” “will,” “would,” “will be,” “will continue,”
“will likely result” and similar expressions, but the absence of these words does not mean that a statement is not forward-looking.
Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations
and assumptions and, as a result, are subject to risks and uncertainties. Actual results may differ from their expectations, estimates
and projections and consequently, you should not rely on these forward-looking statements as predictions of future events. Many factors
could cause actual future events to differ materially from the forward-looking statements in this Current Report on Form 8-K, including
but not limited to: (i) the risk that the Business Combination may not be completed in a timely manner or at all, which may adversely
affect the price of the Company’s securities; (ii) the failure to satisfy the conditions to the consummation of the Business Combination,
including the approval of the Merger Agreement by the stockholders of the Company; (iii) the occurrence of any event, change or other
circumstance that could give rise to the termination of the Merger Agreement; (iv) the outcome of any legal proceedings that may be instituted
against any of the parties to the Merger Agreement following the announcement of the entry into the Merger Agreement and proposed Business
Combination; (v) the ability of the parties to recognize the benefits of the Merger Agreement and the Business Combination; (vi) the
lack of useful financial information for an accurate estimate of future capital expenditures and future revenue (vii) statements regarding
TruGolf’s industry and market size, (viii) financial condition and performance of TruGolf, including the anticipated benefits,
the implied enterprise value, the expected financial impacts of the Business Combination, potential level of redemptions of the Company’s
public stockholders, the financial condition, liquidity, results of operations, the products, the expected future performance and market
opportunities of TruGolf, and (ix) those factors discussed in the Company’s filings with the SEC and that that will be contained
in the Registration Statement relating to the Business Combination. You should carefully consider the foregoing factors and the other
risks and uncertainties that will be described in the “Risk Factors” section of the Registration Statement and other documents
to be filed by the Company from time to time with the SEC. These filings identify and address other important risks and uncertainties
that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking
statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and
while TruGolf and the Company may elect to update these forward-looking statements at some point in the future, they assume no obligation
to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise, subject to
applicable law. Neither TruGolf nor the Company give any assurance that TruGolf or the Company, or the combined company, will achieve
its expectations.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
* |
Certain
exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). the Company agrees to
furnish supplementally a copy of any omitted exhibit or schedule to the SEC upon its request. |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date:
July 24, 2023 |
|
|
|
|
DEEP
MEDICINE ACQUISITION CORP. |
|
|
|
|
By: |
/s/
Humphrey P. Polanen |
|
Name: |
Humphrey
P. Polanen |
|
Title: |
Chief
Executive Officer |
Exhibit 2.1
EXECUTION
VERSION
AMENDED
AND RESTATED
AGREEMENT
AND PLAN OF MERGER
by
and among
DEEP
MEDICINE ACQUISITION CORP.,
as
the Purchaser,
DMAC
MERGER SUB INC.,
as Merger Sub,
BRIGHT
VISION SPONSOR LLC,
in the capacity as the Purchaser Representative,
CHRISTOPHER
JONES,
in the capacity as the Seller Representative,
and
TRUGOLF,
INC.,
as the Company,
Dated
as of July 21, 2023
TABLE
OF CONTENTS
|
Page |
|
|
I.
MERGER |
2 |
1.1.
Merger |
2 |
1.2.
Transaction Effective Time |
2 |
1.3.
Effect of the Merger |
2 |
1.4.
Tax Treatment |
3 |
1.5.
Certificate of Incorporation and Bylaws |
3 |
1.6.
Directors and Officers of the Transaction Surviving Corporation |
3 |
1.7.
Merger Consideration |
3 |
1.8.
Effect of Merger on Company Securities |
3 |
1.9.
Surrender of Company Securities and Disbursement of Merger Consideration |
4 |
1.10.
Effect of Transaction on Merger Sub Stock |
6 |
1.11.
Closing Calculations |
6 |
1.12.
Merger Consideration Adjustment |
6 |
1.13.
Earnout |
9 |
1.14.
Taking of Necessary Action; Further Action |
13 |
1.15.
Appraisal and Dissenter’s Rights |
13 |
|
|
II.
CLOSING |
13 |
2.1.
Closing |
13 |
|
|
III.
representations and warranties of THE purchaser |
14 |
3.1.
Organization and Standing |
14 |
3.2.
Authorization; Binding Agreement |
14 |
3.3.
Governmental Approvals |
14 |
3.4.
Non-Contravention |
15 |
3.5.
Capitalization |
15 |
3.6.
SEC Filings and Purchaser Financials |
16 |
3.7.
Absence of Certain Changes |
17 |
3.8.
Compliance with Laws |
17 |
3.9.
Actions; Orders; Permits |
17 |
3.10.
Taxes and Returns |
17 |
3.11.
Employees and Employee Benefit Plans |
19 |
3.12.
Properties |
19 |
3.13.
Material Contracts |
19 |
3.14.
Transactions with Affiliates |
20 |
3.15.
Merger Sub Activities |
20 |
3.16.
Investment Company Act |
20 |
3.17.
Finders and Brokers |
20 |
3.18.
Ownership of Stockholder Merger Consideration |
20 |
3.19.
Certain Business Practices |
20 |
3.20.
Insurance |
21 |
3.21.
Independent Investigation |
21 |
3.22.
Information Supplied |
21 |
3.23.
No Other Representations |
22 |
|
|
Iv.
representations and warranties of THE COMPANY |
22 |
4.1.
Organization and Standing |
22 |
4.2.
Authorization; Binding Agreement |
22 |
4.3.
Capitalization |
23 |
4.4.
Subsidiaries |
24 |
4.5.
Governmental Approvals |
24 |
|
Page |
|
|
4.6.
Non-Contravention |
24 |
4.7.
Financial Statements |
25 |
4.8.
Absence of Certain Changes |
26 |
4.9.
Compliance with Laws |
26 |
4.10.
Company Permits |
26 |
4.11.
Litigation |
26 |
4.12.
Material Contracts |
27 |
4.13.
Intellectual Property |
28 |
4.14.
Taxes and Returns |
31 |
4.14(a).
Real Property |
32 |
4.16.
Personal Property |
32 |
4.17.
Title to and Sufficiency of Assets |
33 |
4.18.
Employee Matters |
33 |
4.19.
Benefit Plans |
34 |
4.20.
Environmental Matters |
36 |
4.21.
Transactions with Related Persons |
37 |
4.22.
Insurance |
37 |
4.23.
Books and Records |
38 |
4.24.
Top Customers and Suppliers |
38 |
4.25
Certain Business Practices |
38 |
4.26.
[RESERVED] |
38 |
4.27
Investment Company Act |
39 |
4.28.
Finders and Brokers |
39 |
4.29.
Independent Investigation |
39 |
4.30.
Information Supplied |
39 |
4.31.
No Other Representations |
39 |
|
|
V.
COVENANTS |
40 |
5.1.
Access and Information |
40 |
5.2.
Conduct of Business of the Company |
41 |
5.3.
Conduct of Business of the Purchaser |
43 |
5.4.
Annual and Interim Financial Statements |
46 |
5.5.
Purchaser Public Filings |
46 |
5.6.
No Solicitation |
46 |
5.7.
No Trading |
47 |
5.8.
Notification of Certain Matters |
47 |
5.9.
Efforts |
48 |
5.10.
Tax Matters |
49 |
5.11.
Further Assurances |
49 |
5.12.
The Registration Statement |
50 |
5.13.
Company Stockholder Meeting |
51 |
5.14.
Public Announcements |
52 |
5.15.
Confidential Information |
53 |
5.16.
Documents and Information |
54 |
5.17.
Post-Closing Board of Directors and Executive Officers |
54 |
5.18.
Indemnification of Officers and Directors; Tail Insurance |
55 |
5.19.
Trust Account Proceeds |
55 |
5.20.
PIPE Investment |
56 |
5.21.
Employment Agreements |
56 |
5.22.
Company Amended Charter and Class B Share Exchange |
56 |
|
Page |
|
|
VI.
Closing conditions |
56 |
6.1.
Conditions of Each Party’s Obligations |
56 |
6.2.
Conditions to Obligations of the Company |
58 |
6.3.
Conditions to Obligations of the Purchaser |
59 |
6.4.
Frustration of Conditions |
60 |
|
|
VII.
TERMINATION AND EXPENSES |
60 |
7.1.
Termination |
60 |
7.2.
Effect of Termination |
62 |
7.3.
Fees and Expenses |
62 |
7.4.
Termination Fee |
62 |
|
|
VIII.
WAIVERS and releases |
63 |
8.1.
Waiver of Claims Against Trust |
63 |
|
|
Ix.
MISCELLANEOUS |
64 |
9.1.
Non-Survival of Representations, Warranties and Covenants |
64 |
9.2.
Non-Recourse |
64 |
9.3.
Notices |
65 |
9.4.
Binding Effect; Assignment |
66 |
9.5.
Third Parties |
66 |
9.6.
Arbitration |
66 |
9.7.
Governing Law; Jurisdiction |
67 |
9.8.
WAIVER OF JURY TRIAL |
67 |
9.9.
Specific Performance |
67 |
9.10.
Severability |
67 |
9.11.
Amendment |
68 |
9.12.
Waiver |
68 |
9.13.
Entire Agreement |
68 |
9.14.
Interpretation |
69 |
9.15.
Counterparts |
70 |
9.16.
Purchaser Representative |
70 |
9.17.
Seller Representative |
71 |
9.18.
Legal Representation |
73 |
|
|
X.
DEFINITIONS |
74 |
10.1.
Certain Definitions |
74 |
10.2.
Section References |
85 |
INDEX
OF EXHIBITS
Exhibit |
Description |
|
|
Exhibit
A |
Form
of Voting Agreement |
Exhibit
B |
Form
of Lock-Up Agreement |
Exhibit
C |
Form
of Non-Competition Agreement |
Exhibit
D |
Sponsor
Support Agreement |
AMENDED
AND RESTATED
AGREEMENT
AND PLAN OF MERGER
This
Amended and Restated Agreement and Plan of Merger (this “Agreement”) is made and entered into as of July 21,
2023 by and among (i) Deep Medicine Acquisition Corp., a Delaware corporation (together with its successors (as defined below),
the “Purchaser”), (ii) DMAC Merger Sub Inc., a Nevada corporation and a wholly-owned subsidiary of the
Purchaser (“Merger Sub”), (iii) Bright Vision Sponsor LLC, a Delaware limited liability company, in
the capacity as the representative from and after the Effective Time (as defined below) for the stockholders of the Purchaser (other
than the Company Stockholders (as defined below) as of immediately prior to the Effective Time and their successors and assignees) in
accordance with the terms and conditions of this Agreement (the “Purchaser Representative”), (iv) Christopher
Jones, an individual, in the capacity as the representative from and after the Effective Time for the Company Stockholders (as defined
below) as of immediately prior to the Effective Time in accordance with the terms and conditions of this Agreement (the “Seller
Representative”), and (v) TruGolf, Inc., a Nevada corporation (the “Company”). The Purchaser,
Merger Sub, the Purchaser Representative, the Seller Representative and the Company are sometimes referred to herein individually as
a “Party” and, collectively, as the “Parties”.
RECITALS:
A.
The Company is engaged in the business of developing high-end and custom sized indoor Golf Simulators for luxury-residential applications
and high-volume commercial usage.
B.
The Purchaser owns all of the issued and outstanding capital stock of Merger Sub, which was formed for the sole purpose of the Merger
(as defined below);
C.
The Parties intend to effect the merger of Merger Sub with and into the Company, with the Company continuing as the surviving entity
and wholly-owned subsidiary of the Purchaser (the “Merger”), as a result of which (i) all of the issued and
outstanding capital stock of the Company immediately prior to the Effective Time shall no longer be outstanding and shall automatically
be cancelled and shall cease to exist, in exchange for the right for each Company Stockholder to receive its Pro Rata Share (as defined
herein) of the Stockholder Merger Consideration (as defined herein), in accordance with the applicable provisions of the Delaware General
Corporation Law (as amended and in effect from time to time, the “DGCL”) and the Nevada Revised Statutes (as
amended and in effect from time to time, the “NRS”) and (ii) the Company Options (as defined herein) outstanding
at the Effective Time shall be assumed (with adjustments to the number and exercise price of such assumed Company Options to reflect
the Conversion Ratio (as defined herein)), by Purchaser with the result that such assumed Company Options shall be replaced with Assumed
Options (as defined herein) exercisable into shares of Purchaser Class A Common Stock, all in accordance with the terms and subject to
the conditions set forth in this Agreement;
D.
The Parties entered into that certain Business Combination Agreement, dated as of March 31, 2023 (the “Original Business
Combination Agreement”), and the Parties now desire to amend and restate the Original Business Combination Agreement to
provide, among other matters, that the contingent Earnout Shares (defined below) will be issued after the Closing if and when earned
upon the Company meeting the milestones specified herein, rather than being issued at the Closing of the Merger and placed into escrow
subject to potential forfeiture;
E.
The boards of directors of the Company, the Purchaser and Merger Sub have each (i) determined that the Merger is fair, advisable and
in the best interests of their respective companies and stockholders, (ii) approved this Agreement and the transactions contemplated
hereby, including the Merger, upon the terms and subject to the conditions set forth herein, and (iii) determined to recommend to their
respective stockholders the approval and adoption of this Agreement and the transactions contemplated hereby, including the Merger;
E.
The Purchaser has received voting and support agreements in the form attached as Exhibit A hereto (collectively, the “Voting
Agreements”) signed by the Company and certain holders of Company Common Stock (as defined herein) sufficient to approve
the Merger and the other transactions contemplated by this Agreement;
F.
Simultaneously with the execution and delivery of the Original Business Combination Agreement, the Significant Company Holders have each
entered into (a) a Lock-Up Agreement with Purchaser and the Purchaser Representative, the form of which is attached as Exhibit B
hereto (each, a “Lock-Up Agreement”) and (b) a Non-Competition and Non-Solicitation Agreement in favor of Purchaser
and the Company, the form of which is attached as Exhibit C hereto (each, a “Non-Competition Agreement”),
each of which agreements described in clauses (a) and (b) above will become effective as of the Closing;
G.
Simultaneously with the execution and delivery of the Original Business Combination Agreement, the Sponsor (as defined herein) has entered
into a Sponsor Support Agreement with the Company, the form of which is attached as Exhibit D hereto (the “Sponsor
Support Agreement”);
H.
The Parties intend that the Merger will qualify as a tax-free “reorganization” within the meaning of Section 368(a) of the
Code (as defined herein); and
I.
Certain capitalized terms used herein are defined in Article X hereof.
NOW,
THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below,
and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby,
the Parties hereto agree to amend and restate the Original Business Combination Agreement as follows:
Article
I
MERGER
1.1
Merger. At the Effective Time, and subject to and upon the terms and conditions of this Agreement, and in accordance with the
applicable provisions of the NRS, Merger Sub and the Company shall consummate the Merger, pursuant to which Merger Sub shall be merged
with and into the Company, following which the separate corporate existence of Merger Sub shall cease and the Company shall continue
as the surviving corporation. The Company, as the surviving corporation after the Merger, is hereinafter sometimes referred to as the
“Surviving Corporation” (provided, that references to the Company for periods after the Effective Time shall
include the Surviving Corporation).
1.2
Effective Time. The Parties hereto shall cause the Merger to be consummated by filing the Articles of Merger for the merger of
Merger Sub with and into the Company (the “Articles of Merger”) with the Secretary of State of the State of
Nevada in accordance with the applicable provisions of the NRS (the time of such filing, or such later time as may be specified in the
Articles of Merger, being the “Effective Time”).
1.3
Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Articles of
Merger and the applicable provisions of the NRS. Without limiting the generality of the foregoing, and subject thereto, at the Effective
Time, all the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of Merger Sub
and the Company shall become the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations
of the Surviving Corporation, which shall include the assumption by the Surviving Corporation of any and all agreements, covenants, duties
and obligations of Merger Sub and the Company set forth in this Agreement to be performed after the Effective Time.
1.4
Tax Treatment. For federal income tax purposes, the Merger is intended to constitute a “reorganization” within the
meaning of Section 368 of the Code. The Parties adopt this Agreement as a “plan of reorganization” within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations.
1.5
Certificate of Incorporation and Bylaws. At the Effective Time, the Certificate of Incorporation and Bylaws of the Company, each
as in effect immediately prior to the Effective Time, shall automatically be amended and restated in their entirety to read identically
to the Certificate of Incorporation and Bylaws of Merger Sub, as in effect immediately prior to the Effective Time, and such amended
and restated Certificate of Incorporation and Bylaws shall become the respective Certificate of Incorporation and Bylaws of the Surviving
Corporation, except that the name of the Surviving Corporation in such Certificate of Incorporation and Bylaws shall be amended to be
“TruGolf, Inc.”
1.6
Directors and Officers of the Surviving Corporation. At the Effective Time, the board of directors and executive officers of the
Surviving Corporation shall be the same individuals determined in accordance with Section 5.17, each to hold office in accordance
with the Certificate of Incorporation and Bylaws of the Surviving Corporation until their respective successors are duly elected or appointed
and qualified or their earlier death, resignation or removal.
1.7
Merger Consideration. As consideration for the Merger, the Company Stockholders shall be entitled to receive from the Purchaser
a total number of shares of Purchaser Common Stock with an aggregate value equal to (a) the Base Consideration, plus (b) the amount,
if any, by which the Net Working Capital exceeds the Target Net Working Capital Amount minus (c) the amount, if any, by which the Target
Net Working Capital Amount exceeds the Net Working Capital (but not less than zero), minus (d) the amount of Closing Net Debt, minus
(e) the amount of any unpaid Company Transaction Expenses (the “Merger Consideration”). Each Company Stockholder
shall receive for each share of Company Common Stock held (a number of shares of Purchaser Common Stock equal to (i) the Per Share Price,
divided by (ii) the Purchaser Share Price (the “Conversion Ratio”) (the total portion of the Merger Consideration
amount payable to all Company Stockholders (but excluding holders of Company Options) in accordance with this Agreement is also referred
to herein as the “Stockholder Merger Consideration”). The holders of Company Options shall receive such number
of Assumed Options as described in Section 1.8(d) with such terms and conditions as described in Section 1.8(d).
Additionally, at the Closing, the Company Stockholders shall receive the contingent right to receive Earnout Shares as additional
consideration pursuant to the terms of this Agreement and subject to the terms and conditions set forth in Section 1.13.
1.8
Effect of Merger on Company Securities. At the Effective Time, by virtue of the Merger and without any action on the part of any
Party or the holders of any Company Securities or the holders of any shares of capital stock of the Purchaser or Merger Sub:
(a)
Company Common Stock. Subject to clause (b) and (c) below, (i) each holder of Company Class A Common Stock issued and outstanding
immediately prior to the Effective Time shall, in accordance with the Company Certificate of Incorporation (or, if applicable, the Amended
Company Charter), be converted into the right to receive a number of shares of Purchaser Class A Common Stock equal to its Pro Rata Share
of the Stockholder Merger Consideration (as it may be adjusted after the Closing pursuant to Section 1.12), without interest,
upon delivery of the Transmittal Documents in accordance with Section 1.9; and (ii) each holder of Company Class B Common Stock
issued and outstanding immediately prior to the Effective Time (other than any such shares of Company Common Stock cancelled pursuant
to Section 3.1(a) and any Dissenting Shares), if any, shall, in accordance with the Amended Company Charter (if adopted), be converted
into the right to receive a number of shares of Purchaser Class B Common Stock equal to its Pro Rata Share of the Stockholder Merger
Consideration, without interest, upon delivery of the Transmittal Documents in accordance with Section 1.9. As of the Effective
Time, each Company Stockholder shall cease to have any other rights in and to the Company or the Surviving Corporation (other than the
rights set forth in Section 1.15 below).
(b)
Treasury Stock. Notwithstanding clause (a) above or any other provision of this Agreement to the contrary, at the Effective
Time, if there are any Company Securities that are owned by the Company as treasury shares, such Company Securities shall be canceled
and shall cease to exist without any conversion thereof or payment therefor.
(c)
Dissenting Shares. Each of the Dissenting Shares issued and outstanding immediately prior to the Effective Time shall be cancelled
and cease to exist in accordance with Section 1.15 and shall thereafter represent only the right to receive the applicable payments
set forth in Section 1.15.
(d)
Company Options. Each outstanding Company Option (whether vested or unvested) shall be assumed by the Purchaser and shall become
an option to purchase shares of Purchaser Class A Common Stock (each, an “Assumed Option”). Each Assumed Option
will be subject to the terms and conditions set forth in its option agreement with the Company (except any references therein to the
Company or Company Common Stock will instead mean the Purchaser and Purchaser Class A Common Stock, respectively). Each Assumed Option
shall: (i) have the right to acquire a number of shares of Purchaser Class A Common Stock equal to (as rounded down to the nearest whole
number) the product of (A) the number of shares of Company Common Stock which the Company Option had the right to acquire immediately
prior to the Effective Time, multiplied by (B) the Conversion Ratio; (ii) have an exercise price equal to (as rounded up to the nearest
whole cent) the quotient of (A) the exercise price of the Company Option, divided by (B) the Conversion Ratio; and (iii) be subject to
the same vesting schedule as the applicable Company Option. The Purchaser shall take all corporate action necessary to reserve for future
issuance, and shall maintain such reservation for so long as any of the Assumed Options remain outstanding, a sufficient number of shares
of Purchaser Class A Common Stock for delivery upon the exercise of such Assumed Option.
(e)
Other Company Convertible Securities. All Other Company Convertible Securities other than a Company Option, if not exercised or
converted prior to the Effective Time, shall be cancelled, retired and terminated and cease to represent a right to acquire, be exchanged
for or convert into shares of Company Stock.
1.9
Surrender of Company Securities and Disbursement of Merger Consideration.
(a)
Prior to the Effective Time, the Purchaser shall appoint its transfer agent, American Stock Transfer & Trust Company, LLC, or another
agent reasonably acceptable to the Company (the “Exchange Agent”), for the purpose of exchanging the certificates
representing Company Common Stock, (“Company Certificates”) if any, and each share of capital stock held in
book-entry form on the stock transfer books of the Company immediately prior to the Effective Time. At or prior to the Effective Time,
the Purchaser shall deposit, or cause to be deposited, with the Exchange Agent the Stockholder Merger Consideration. At or prior to the
Effective Time, the Purchaser shall send, or shall cause the Exchange Agent to send, to each Company Stockholder, a letter of transmittal
for use in such exchange, in a form mutually acceptable to the company and the Purchaser (a “Letter of Transmittal”)
(which shall specify that the delivery of Company Certificates or uncertificated shares in respect of the Stockholder Merger Consideration
shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Company Certificates or uncertificated shares
to the Exchange Agent (or a Lost Certificate Affidavit)) for use in such exchange.
(b)
Each Company Stockholder shall be entitled to receive its Pro Rata Share of the Stockholder Merger Consideration in respect of the Company
Common Stock represented by such holder’s Company Certificate(s) (excluding any Company Securities described in Sections 1.8(b))
and 1.8(c)) as soon as reasonably practicable after the Effective Time, but subject to the delivery to the Exchange Agent
of the following items prior thereto (collectively, the “Transmittal Documents”): (i) the Company Certificate(s)
for its Company Common Stock (or a Lost Certificate Affidavit), together with a properly completed and duly executed Letter of Transmittal
and (ii) such other documents as may be reasonably requested by the Exchange Agent or the Purchaser. Until so surrendered, each Company
Certificate shall represent after the Effective Time for all purposes only the right to receive such portion of the Stockholder Merger
Consideration (as it may be adjusted after the Closing pursuant to Section 1.12) attributable to such Company Certificate.
(c)
If any portion of the Stockholder Merger Consideration is to be delivered or issued to a Person other than the Person in whose name the
surrendered Company Certificate is registered immediately prior to the Effective Time, it shall be a condition to such delivery that
(i) the transfer of such Company Common Stock shall have been permitted in accordance with the terms of the Company’s Organizational
Documents and any stockholders agreement with respect to the Company, each as in effect immediately prior to the Effective Time, (ii)
such Company Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and, (iii) the recipient of such
portion of the Stockholder Merger Consideration, or the Person in whose name such portion of the Stockholder Merger Consideration is
delivered or issued, shall have already executed and delivered, if a Significant Company Holder, counterparts to a Lock-Up Agreement
and Non-Competition Agreement, and such other Transmittal Documents as are reasonably deemed necessary by the Exchange Agent or the Purchaser
and (iv) the Person requesting such delivery shall pay to the Exchange Agent any transfer or other Taxes required as a result of such
delivery to a Person other than the registered holder of such Company Certificate or establish to the satisfaction of the Exchange Agent
that such Tax has been paid or is not payable.
(d)
Notwithstanding anything to the contrary contained herein, in the event that any Company Certificate shall have been lost, stolen or
destroyed, in lieu of delivery of a Company Certificate to the Exchange Agent, the Company Stockholders may instead deliver to the Exchange
Agent an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to the Purchaser (a “Lost
Certificate Affidavit”), which at the reasonable discretion of the Purchaser may include a requirement that the owner of
such lost, stolen or destroyed Company Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim
that may be made against the Purchaser or the Surviving Corporation with respect to the shares of Company Common Stock represented by
the Company Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly delivered in accordance
with this Section 1.9(d) shall be treated as a Company Certificate for all purposes of this Agreement.
(e)
After the Effective Time, there shall be no further registration of transfers of Company Common Stock. If, after the Effective Time,
Company Certificates are presented to the Surviving Corporation, the Purchaser or the Exchange Agent, they shall be canceled and exchanged
for the applicable portion of the Stockholder Merger Consideration provided for, and in accordance with the procedures set forth in this
Section 1.9. No dividends or other distributions declared or made after the date of this Agreement with respect to Purchaser
Common Stock with a record date after the Effective Time will be paid to the holders of any Company Certificates that have not yet been
surrendered with respect to the Purchaser Common Stock to be issued upon surrender thereof until the holders of record of such Company
Certificates shall surrender such certificates (or provide a Lost Certificate Affidavit), if applicable, and provide the other Transmittal
Documents. Subject to applicable Law, following surrender of any such Company Certificates (or delivery of a Lost Certificate Affidavit),
if applicable, and delivery of the other Transmittal Documents, Purchaser shall promptly deliver to the record holders thereof, without
interest, the certificates representing the Purchaser Common Stock issued in exchange therefor and the amount of any such dividends or
other distributions with a record date after the Effective Time theretofore paid with respect to such Purchaser Common Stock.
(f)
All securities issued upon the surrender of Company Securities in accordance with the terms hereof shall be deemed to have been issued
in full satisfaction of all rights pertaining to such Company Securities. Notwithstanding the foregoing, none of the Surviving Corporation,
the Purchaser or any Party hereto shall be liable to any Person for any amount properly paid to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(g)
Notwithstanding anything to the contrary contained herein, no fraction of a share of Purchaser Common Stock will be issued by virtue
of the Merger or the transactions contemplated hereby, and each Person who would otherwise be entitled to a fraction of a share of Purchaser
Common Stock (after aggregating all fractional shares of Purchaser Common Stock that otherwise would be received by such holder) shall
instead have the number of shares of Purchaser Common Stock issued to such Person rounded down in the aggregate to the nearest whole
share of Purchaser Common Stock.
1.10
Effect of Transaction on Merger Sub Stock. At the Effective Time, by virtue of the Merger and without any action on the part of
any Party or the holders of any shares of capital stock of the Purchaser or Merger Sub, each share of Merger Sub Common Stock outstanding
immediately prior to the Effective Time shall be converted into an equal number of shares of common stock of the Surviving Corporation,
with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock
of the Surviving Corporation.
1.11
Closing Calculations. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the Purchaser a
statement certified by the Company’s chief executive officer (the “Estimated Closing Statement”) setting
forth a good faith calculation of the Company’s estimate of the Closing Net Debt, Net Working Capital and Company Transaction Expenses,
in each case, as of the Reference Time, and the resulting Merger Consideration and Per Share Price based on such estimates, in reasonable
detail including for each component thereof, along with the amount owed to each creditor of the Company, and bank statements and other
evidence reasonably necessary to confirm such calculations. Promptly upon delivering the Estimated Closing Statement to the Purchaser,
if requested by the Purchaser, the Company will meet with the Purchaser to review and discuss the Estimated Closing Statement and the
Company will consider in good faith the Purchaser’s comments to the Estimated Closing Statement and make any appropriate adjustments
to the Estimated Closing Statement prior to the Closing, which adjusted Estimated Closing Statement, as mutually approved by the Company
and the Purchaser both acting reasonably and in good faith, shall thereafter become the Estimated Closing Statement for all purposes
of this Agreement. The Estimated Closing Statement and the determinations contained therein shall be prepared in accordance with the
Accounting Principles and otherwise in accordance with this Agreement.
1.12
Merger Consideration Adjustment.
(a)
Within ninety (90) days after the Closing Date, Purchaser’s Chief Financial Officer (the “CFO”) shall
deliver to the Purchaser Representative and the Seller Representative a statement (the “Closing Statement”)
setting forth (i) a balance sheet of the Company as of the Reference Time and (ii) a good faith calculation of the Closing Net Debt,
Net Working Capital and Company Transaction Expenses, in each case, as of the Reference Time, and the resulting Merger Consideration
using the formula in Section 1.7. The Closing Statement shall be prepared, and the Closing Net Debt, Net Working Capital, and
Company Transaction Expenses and the resulting Merger Consideration and Stockholder Merger Consideration shall be determined in accordance
with the Accounting Principles and otherwise in accordance with this Agreement.
(b)
After delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives
on their behalves, shall be permitted reasonable access to the books, records, working papers, files, facilities and personnel of the
Company relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective
Representatives on their behalves, may make inquiries of the CFO and related Purchaser and the Company personnel and advisors regarding
questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser and the
Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser Representative
(each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall
deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection
Statement”). If an Objection Statement is not delivered by a Representative Party within thirty (30) days following the
date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement,
all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement
is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good
faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative
do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the
date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative
Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.12(c).
For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e., no prior
material business relationship with any party for the prior two (2) years) accounting firm appointed by the Purchaser Representative
and the Seller Representative, which appointment will be made no later than ten (10) days after the Independent Expert Notice Date);
provided, that if the Independent Expert does not accept its appointment or if the Purchaser Representative and the Seller Representative
cannot agree on the Independent Expert, in either case within twenty (20) days after the Independent Expert Notice Date, either Representative
Party may require, by written notice to the other Representative Party, that the Independent Expert be selected by the New York City
Regional Office of the AAA in accordance with the AAA’s procedures. The parties agree that the Independent Expert will be deemed
to be independent even though a Party or its Affiliates may, in the future, designate the Independent Expert to resolve disputes of the
types described in this Section 1.12. The Parties acknowledge that any information provided pursuant to this Section 1.12
will be subject to the confidentiality obligations of Section 5.15.
(c)
If a dispute with respect to the Closing Statement is submitted in accordance with this Section 1.12 to the Independent Expert
for final resolution, the Parties will follow the procedures set forth in this Section 1.12(c). Each of the Seller Representative
and the Purchaser Representative agrees to execute, if requested by the Independent Expert, a reasonable engagement letter with respect
to the determination to be made by the Independent Expert. All fees and expenses of the Independent Expert will be borne by the Purchaser.
Except as provided in the preceding sentence, all other costs and expenses incurred by the Seller Representative in connection with resolving
any dispute hereunder before the Independent Expert will be borne by the Company Stockholders, and all other costs and expenses incurred
by the Purchaser Representative in connection with resolving any dispute hereunder before the Independent Expert will be borne by the
Purchaser. The Independent Expert will determine only those issues still in dispute as of the Independent Expert Notice Date and the
Independent Expert’s determination will be based solely upon and consistent with the terms and conditions of this Agreement. The
determination by the Independent Expert will be based solely on presentations with respect to such disputed items by the Purchaser Representative
and the Seller Representative to the Independent Expert and not on the Independent Expert’s independent review; provided,
that such presentations will be deemed to include any work papers, records, accounts or similar materials delivered to the Independent
Expert by a Representative Party in connection with such presentations and any materials delivered to the Independent Expert in response
to requests by the Independent Expert. Each of the Seller Representative and the Purchaser Representative will use their reasonable efforts
to make their respective presentations as promptly as practicable following submission to the Independent Expert of the disputed items,
and each such Representative Party will be entitled, as part of its presentation, to respond to the presentation of the other Representative
Party and any questions and requests of the Independent Expert. In deciding any matter, the Independent Expert will be bound by the provisions
of this Agreement, including this Section 1.12. It is the intent of the parties hereto that the activities of the Independent
Expert in connection herewith are not (and should not be considered to be or treated as) an arbitration proceeding or similar arbitral
process and that no formal arbitration rules should be followed (including rules with respect to procedures and discovery). The Seller
Representative and the Purchaser Representative will request that the Independent Expert’s determination be made within forty-five
(45) days after its engagement, or as soon thereafter as possible, will be set forth in a written statement delivered to the Purchaser
Representative and the Seller Representative and will be final, conclusive, non-appealable and binding for all purposes hereunder (other
than for fraud or manifest error).
(d)
For purposes hereof, the term “Adjustment Amount” shall mean (x) the Merger Consideration as finally determined
in accordance with this Section 1.12, less (y) the Merger Consideration that was issued at the Closing pursuant to the Estimated
Closing Statement.
(i)
If the Adjustment Amount is a positive number, then Purchaser shall, within ten (10) Business Days after such final determination of
the Merger Consideration, issue to the Company Stockholders an additional number of shares of Purchaser Common Stock equal to (x) the
Adjustment Amount, divided by (y) the Purchaser Share Price. Such additional shares of Purchaser Common Stock shall be considered additional
Merger Consideration under this Agreement and, “Restricted Securities” under the Lock-Up Agreement.
(ii)
If the Adjustment Amount is a negative number, then the Seller Representative shall, within three (3) Business Days after such final
determination, deliver to the Purchaser a number of shares of Purchaser Common Stock with a value equal to the absolute value of the
Adjustment Amount (with each share of Purchaser Common Stock valued at the Purchaser Share Price). Purchaser will promptly cancel any
shares of Purchaser Common Stock delivered to it by the Seller Representative promptly after its receipt thereof.
1.13
Earnout.
(a)
Earnout Shares. At the Closing, subject to the terms and conditions set forth herein, the Company Stockholders shall receive the
contingent right to receive up to an additional 4,500,000 shares of Purchaser Class A Common Stock (each an “Earnout Share”),
with each share valued at the Purchaser Share Price, as additional Merger Consideration, subject to equitable adjustment for stock
splits, stock dividends, combinations, recapitalizations and the like following the Closing, including to account for any equity securities
into which such shares are exchanged or converted.
(b)
End of Milestone Year.
(i)
If at the end of a Price Measurement Period and the final determination in accordance with Section 1.13(d) below with respect to
all potential Earnout Shares in the Tranche that could be earned by the Company Stockholders during such Price Measurement Period or
the calendar years (each such calendar year, an “Milestone Year”) that it applies to (whether from meeting
a Price Milestone or a Revenue Milestone), a Revenue Milestone or a Price Milestone is not met, the Company Stockholders shall not be
entitled to receive the portion of the Earnout Shares applicable to such Revenue Milestone or a Price Milestone.
(c)
Criteria to Receive Earnout Shares. The Earnout Shares will be earned in accordance with this Section 1.13(c) as follows:
(i)
Up to a maximum of 1,000,000 of the total Earnout Shares (without giving effect to any prior issuances, the “First Tranche”),
shall be earned upon the occurrence of any of the following:
(A)
without duplication of clauses (B) and (C) below, (x) in the event that the consolidated gross revenue of Purchaser and its Subsidiaries
(including the Company) (the “Gross Revenues”) (including the Company for such full period, including periods
prior to the Closing) as reported in the audited financial statements set forth in Purchaser’s annual report on Form 10-K for the
calendar year ending December 31, 2024 as filed with the SEC (the “2024 Revenue”), equals or exceeds Thirty
Million Dollars ($30,000,000) but is less than Forty Two Million Dollars ($42,000,000), then the Company Stockholders shall be entitled
to receive 50% of the First Tranche (in accordance with their Pro Rata Share) or (y) in the event that the 2024 Revenue equals or exceeds
Forty Two Million Dollars ($42,000,000) (each of the applicable 2024 Revenue milestones referred to in (x) and (y) above, a “First
Tranche Revenue Milestone”), then the Company Stockholders shall be entitled to receive 100% of the First Tranche (in accordance
with their Pro Rata Share); or
(B)
without duplication of clause (A) above or clause (C) below, in the event that the VWAP of the shares of Purchaser Class A Common Stock
is at least $13.00 per share (the “First Tranche Price Milestone”) (as equitably adjusted for stock splits,
stock capitalizations, stock consolidations, subdivisions, stock dividends, reorganizations, recapitalizations and the like after the
Closing) for at least twenty (20) out of thirty (30) Trading Days during the period (the “First Tranche Price Measurement
Period”) from the Closing through and including the thirtieth (30th) Trading Day after the date on which Purchaser
files its annual report on Form 10-K for the calendar year ending December 31, 2024 with the SEC (the date of such filing, the “2024
Filing Date”), then the Company Stockholders shall be entitled to receive 100% of the First Tranche (in accordance with
their Pro Rata Share); or
(C)
without duplication of clauses (A) and (B) above, in the event that ten (10) or more Qualified Franchise Locations are opened prior to
the end of the calendar year ending December 31, 2024 (the “First Tranche Franchise Milestone”), then the Company
Stockholders shall be entitled to receive 100% of the First Tranche (in accordance with their Pro Rata Share).
(ii)
In addition to Section 1.13(c)(i), up to a maximum of 1,500,000 of the total Earnout Shares (without giving effect to any prior
issuances, the “Second Tranche”), shall be earned upon the occurrence of any of the following:
(A)
without duplication of clauses (B) and (C) below, (x) in the event that the Gross Revenues (including the Company for such full period,
including periods prior to the Closing) as reported in the audited financial statements set forth in Purchaser’s annual report
on Form 10-K for the calendar year ending December 31, 2025 as filed with the SEC (the “2025 Revenue”), equals
or exceeds Fifty Million Dollars ($50,000,000) but is less than Sixty Five Million Dollars ($65,000,000), then the Company Stockholders
shall be entitled to receive 50% of the Second Tranche (in accordance with their Pro Rata Share) or (y) in the event that the 2025 Revenue
equals or exceeds Sixty Five Million Dollars ($65,000,000) (each of the applicable 2025 Revenue milestones referred to in (x) and (y)
above, a “Second Tranche Revenue Milestone”), then the Company Stockholders shall be entitled to receive 100%
of the Second Tranche (in accordance with their Pro Rata Share); or
(B)
without duplication of clause (A) above or clause (C) below, in the event that the VWAP of the shares of Purchaser Class A Common Stock
is at least $15.00 per share (the “Second Tranche Price Milestone”) (as equitably adjusted for stock splits,
stock capitalizations, stock consolidations, subdivisions, stock dividends, reorganizations, recapitalizations and the like after the
Closing) for at least twenty (20) out of thirty (30) Trading Days during the period (the “Second Tranche Price Measurement
Period”) from the 2024 Filing Date through and including the thirtieth (30th) Trading Day after the date on
which Purchaser files its annual report on Form 10-K for the calendar year ending December 31, 2025 with the SEC (the date of such filing,
the “2025 Filing Date”), then the Company Stockholders shall be entitled to receive 100% of the Second Tranche
(in accordance with their Pro Rata Share); or
(C)
without duplication of clauses (A) and (B) above, in the event that thirty (30) or more Qualified Franchise Locations are opened prior
to the end of the calendar year ending December 31, 2025 (the “Second Tranche Franchise Milestone”), then the
Company Stockholders shall be entitled to receive 100% of the Second Tranche (in accordance with their Pro Rata Share).
(iii)
In addition to Section 1.13(c)(i) and Section 1.13(c)(ii), up to a maximum of 2,000,000 of the total Earnout Shares (without
giving effect to any prior issuances, the “Third Tranche”, and each of the First Tranche, the Second Tranche
and the Third Tranche, a “Tranche”), shall be earned upon the occurrence of any of the following:
(A)
without duplication of clauses (B) and (C) below, (x) in the event that the Gross Revenues (including the Company for such full period,
including periods prior to the Closing) as reported in the audited financial statements set forth in Purchaser’s annual report
on Form 10-K for the calendar year ending December 31, 2026 as filed with the SEC (the “2026 Revenue”), equals
or exceeds Eighty Million Dollars ($80,000,000) but is less than One Hundred Million Dollars ($100,000,000), then the Company Stockholders
shall be entitled to receive 50% of the Third Tranche (in accordance with their Pro Rata Share) or (y) in the event that the 2026 Revenue
equals or exceeds One Hundred Million Dollars ($100,000,000) (each of the applicable 2026 Revenue milestones referred to in (x) and (y)
above, a “Third Tranche Revenue Milestone”, and each of the First Tranche Revenue Milestone, the Second Tranche
Revenue Milestone and the Third Tranche Revenue Milestone, a “Revenue Milestone”), then the Company Stockholders
shall be entitled to receive 100% of the Third Tranche (in accordance with their Pro Rata Share); or
(B)
without duplication of clause (A) above or clause (C) below, in the event that the VWAP of the shares of Purchaser Class A Common Stock
is at least $17.00 per share (the “Third Tranche Price Milestone”, each of the First Tranche Price Milestone,
the Second Tranche Price Milestone and the Third Tranche Price Milestone, a “Price Milestone”) (as equitably
adjusted for stock splits, stock capitalizations, stock consolidations, subdivisions, stock dividends, reorganizations, recapitalizations
and the like after the Closing) for at least twenty (20) out of thirty (30) Trading Days during the period (the “Third Tranche
Price Measurement Period”, each of the First Tranche Price Measurement Period, the Second Tranche Price Measurement Period
and the Third Tranche Price Measurement Period, a “Price Measurement Period”) from the 2025 Filing Date through
and including the thirtieth (30th) Trading Day after the date on which Purchaser files its annual report on Form 10-K for
the calendar year ending December 31, 2026 with the SEC (the date of such filing, the “2026 Filing Date”, and
each of the 2024 Filing Date, the 2025 Filing Date and the 2026 Filing Date, a “Filing Date”), then the Company
Stockholders shall be entitled to receive 100% of the Third Tranche (in accordance with their Pro Rata Share); or
(C)
without duplication of clauses (A) and (B) above, in the event that fifty (50) or more Qualified Franchise Locations are opened prior
to the end of the calendar year ending December 31, 2026 (the “Third Tranche Franchise Milestone”, and each
of the First Tranche Franchise Milestone, the Second Tranche Franchise Milestone and the Third Tranche Franchise Milestone, a “Franchise
Milestone” and each Price Milestone, Revenue Milestone and Franchise Milestone, a “Milestone”),
then the Company Stockholders shall be entitled to receive 100% of the Third Tranche (in accordance with their Pro Rata Share).
(d)
Determination of Whether Milestones are Met.
(i)
The CFO shall monitor the VWAP of the shares of Purchaser Class A Common Stock on each Trading Day during the Price Measurement Period,
and as promptly as practicable (but in any event within ten (10) Business Days) after the end of (A) each calendar month during the Price
Measurement Period and (B) each Price Measurement Period, the CFO will prepare and send to each Representative Party, a written statement
(each, a “Price Statement”) that sets forth (i) the VWAP of the shares of Purchaser Class A Common Stock on
each Trading Day during such calendar month or Price Measurement Period then ended and (ii) whether a Price Milestone has been achieved
during such period. Each Reviewing Party will have twenty (20) days after its receipt of a Price Statement to review it, and each Representative
Party and its Representatives on its behalf may make inquiries to the CFO and related personnel and advisors of Purchaser and its Subsidiaries
regarding questions concerning or disagreements with the Price Statement arising in the course of their review thereof, and Purchaser
and its Subsidiaries shall provide reasonable cooperation in connection therewith. If either Representative Party has any objections
to a Price Statement, then it shall deliver to the CFO and the other Representative Party, a statement setting forth its objections thereto
(in reasonable detail). If such written statement is not delivered by a Representative Party within twenty (20) days following the date
of delivery of such Price Statement, then such Representative Party will have waived its right to contest such Price Statement and the
calculation of the VWAP of the shares of Purchaser Class A Common Stock on each Trading Day during the applicable portion of the Price
Measurement Period (and whether a Price Milestone has been achieved) as set forth therein. If such written statement is delivered by
a Representative Party within such twenty (20) day period, then the Reviewing Parties shall negotiate in good faith to resolve any such
objections for a period of ten (10) Business Day thereafter. If the Reviewing Parties do not reach a final resolution within such ten
(10) Business Day period, then upon the written request of either Representative Party the Reviewing Parties will refer the dispute to
the Independent Expert for final resolution of the dispute in accordance with Section 1.13(d)(iii) below.
(ii)
As soon as practicable (but in any event within ten (10) Business Days) after each Filing Date, the CFO will prepare and deliver to the
Reviewing Parties, a written statement (each, a “Revenue and Franchise Statement” and any of a Price Statement
or a Revenue and Franchise Statement, a “Milestone Statement”) that sets forth the CFO’s determination
in accordance with the terms of this Section 1.13 of the Gross Revenue for the Milestone Year then ended, the number of Qualified
Franchise locations opened and whether the applicable Revenue Milestone and/or Franchise Milestone have been satisfied for such Milestone
Year. Each Representative Party will have twenty (20) days after its receipt of a Revenue and Franchise Statement to review it, and each
Representative Party and its Representatives on its behalf may make inquiries to the CFO and related personnel and advisors of Purchaser
and its Subsidiaries regarding questions concerning or disagreements with the Revenue and Franchise Statement arising in the course of
their review thereof, and Purchaser and its Subsidiaries shall provide reasonable cooperation in connection therewith. If either Representative
Party has any objections to a Revenue and Franchise Statement, such Representative Party shall deliver to the CFO and the other Representative
Party, a statement setting forth its objections thereto (in reasonable detail). If such written statement is not delivered by a Representative
Party within twenty (20) days following the date of delivery of such Revenue and Franchise Statement, then such Representative Party
will have waived its right to contest such Revenue and Franchise Statement and the determination of the Gross Revenue for such Milestone
Year (and whether the Revenue Milestone has been satisfied for such Milestone Year) as set forth therein. If such written statement is
delivered by a Representative Party within such twenty (20) day period, then the Reviewing Parties shall negotiate in good faith to resolve
any such objections for a period of ten (10) Business Day thereafter. If the Reviewing Parties do not reach a final resolution within
such ten (10) Business Day period, then, upon the written request of either Representative Party, the Reviewing Parties will refer the
dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.13(d)(iii) below.
(iii)
If a dispute with respect a Milestone Statement is submitted in accordance with this Section 1.13(d) to the Independent Expert
for final resolution, the Parties will follow the procedures set forth in this Section 1.13(d)(iii). Each Reviewing Party
agrees to execute, if requested by the Independent Expert, a reasonable engagement letter with respect to the determination to be made
by the Independent Expert. All fees and expenses of the Independent Expert, and all other out-of-pocket costs and expenses incurred by
a Reviewing Party in connection with resolving any dispute hereunder before the Independent Expert, will be borne by Purchaser. The Independent
Expert will determine only those issues still in dispute as of the Independent Expert Notice Date and the Independent Expert’s
determination will be based solely upon and consistent with the terms and conditions of this Agreement. Each Reviewing Party will use
their commercially reasonable efforts to make their respective presentations as promptly as practicable following submission to the Independent
Expert of the disputed items, and each such Reviewing Party will be entitled, as part of its presentation, to respond to the presentation
of the other Reviewing Party and any questions and requests of the Independent Expert. In deciding any matter, the Independent Expert
will be bound by the provisions of this Agreement, including this Section 1.13(d)(iii). It is the intent of the parties hereto
that the activities of the Independent Expert in connection herewith are not (and should not be considered to be or treated as) an arbitration
proceeding or similar arbitral process and that no formal arbitration rules should be followed (including rules with respect to procedures
and discovery). Each Reviewing Party will request that the Independent Expert’s determination be made within thirty (30) days after
its engagement, or as soon thereafter as possible, will be set forth in a written statement delivered to the Reviewing Parties and will
be final, conclusive, non-appealable and binding for all purposes hereunder (other than for fraud or manifest error).
(e)
Issuance of Earnout Shares. If there is a final determination in accordance with Section 1.13(d) that the Company Stockholders
are entitled to receive Earnout Shares upon the Company achieving a Revenue Milestone, a Price Milestone or both, 50% or 100% of the
Earnout Shares, as applicable, will be due upon such final determination and Purchaser will deliver such shares to the Company Stockholders
within ten (10) Business Days thereafter.
(f)
Changes in Business. Subject to the requirements of this Section 1.13, each of Purchaser and its Subsidiaries, including
the Company, will be permitted, following the Closing, to make changes at its sole discretion to its operations, organization, personnel,
accounting practices and other aspects of its business, including actions that may have an impact on the Gross Revenues, the share price
of the shares of Purchaser Class A Common Stock, the opening of franchise locations or otherwise the ability of the Company Stockholders
to earn the Earnout Shares in accordance with this Section 1.13, and the Company Stockholders will not have any right to claim
the loss of all or any portion of any Earnout Shares or other damages as a result of such decisions. Notwithstanding the foregoing, Purchaser
shall not, and shall cause its Subsidiaries, including the Company, to not, take or omit to take any action that is in bad faith and
has the primary purpose of avoiding, reducing or preventing the achievement or attainment of the Milestones.
1.14
Taking of Necessary Action; Further Action. If, at any time after the Effective Time, any further action is necessary or desirable
to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets,
property, rights, privileges, powers and franchises of the Company and Merger Sub, the officers and directors of the Company and Merger
Sub are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary
action, so long as such action is not inconsistent with this Agreement.
1.15
Appraisal and Dissenter’s Rights. No Company Stockholder who has validly exercised its appraisal rights pursuant to Section
92A.380 of the NRS (a “Dissenting Stockholder”) with respect to its Company Common Stock (such shares, “Dissenting
Shares”) shall be entitled to receive any portion of the Stockholder Merger Consideration with respect to the Dissenting
Shares owned by such Dissenting Stockholder unless and until such Dissenting Stockholder shall have effectively withdrawn or lost its
appraisal rights under the NRS. Each Dissenting Stockholder shall be entitled to receive only the payment resulting from the procedure
set forth in Section 92A.380 of the NRS with respect to the Dissenting Shares owned by such Dissenting Stockholder. The Company shall
give the Purchaser and the Purchaser Representative (i) prompt notice of any written demands for appraisal, attempted withdrawals of
such demands, and any other instruments served pursuant to applicable Laws that are received by the Company relating to any Dissenting
Stockholder’s rights of appraisal and (ii) the opportunity to direct all negotiations and proceedings with respect to demand for
appraisal under the NRS. The Company shall not, except with the prior written consent of the Purchaser and the Purchaser Representative,
voluntarily make any payment with respect to any demands for appraisal, offer to settle or settle any such demands or approve any withdrawal
of any such demands. Notwithstanding anything to the contrary contained in this Agreement, for all purposes of this Agreement, the Stockholder
Merger Consideration shall be reduced by the Pro Rata Share of any Dissenting Stockholders attributable to any Dissenting Shares and
the Dissenting Stockholders shall have no rights to any portion of the Stockholder Merger Consideration with respect to any Dissenting
Shares.
Article
II
CLOSING
2.1
Closing. Subject to the satisfaction or waiver of the conditions set forth in Article VI, the consummation of the transactions
contemplated by this Agreement (the “Closing”) shall take place at the offices of Ellenoff Grossman & Schole,
LLP (“EGS”), counsel to the Purchaser, 1345 Avenue of the Americas, New York, NY 10105, on a date and at a
time to be agreed upon by Purchaser and the Company, which date shall be no later than the second (2nd) Business Day after
all the Closing conditions to this Agreement have been satisfied or waived, or at such other date, time or place (including remotely)
as the Purchaser and the Company may agree (the date and time at which the Closing is actually held being the “Closing Date”).
Article
III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Except
as set forth in (i) the disclosure schedules delivered by the Purchaser to the Company on the date of this Agreement1 (the
“Purchaser Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers
of this Agreement to which they refer, or (ii) the SEC Reports that are available on the SEC’s website through EDGAR, the Purchaser
represents and warrants to the Company, as of the date hereof and as of the Closing, as follows:
3.1
Organization and Standing. The Purchaser is a company duly incorporated, validly existing and in good standing under the Laws
of Delaware. Merger Sub is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Nevada.
Each of the Purchaser and Merger Sub has all requisite corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. The Purchaser is duly qualified or licensed and in good standing to do business in each
jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes
such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing can be cured without
material cost or expense. The Purchaser has heretofore made available to the Company accurate and complete copies of its Organizational
Documents, as currently in effect. The Purchaser is not in violation of any provision of its Organizational Documents in any material
respect.
3.2
Authorization; Binding Agreement. Each of the Purchaser and Merger Sub has all requisite corporate power and authority to execute
and deliver this Agreement and each Ancillary Document to which it is a party, to perform their respective obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby, subject to obtaining the Required Purchaser Stockholder
Approval. The execution and delivery of this Agreement and each Ancillary Document to which it is a party and the consummation of the
transactions contemplated hereby and thereby (a) have been duly and validly authorized by the board of directors of the Purchaser and
Merger Sub and by the Purchaser as the sole stockholder of Merger Sub, and (b) other than the Required Purchaser Stockholder Approval,
no other corporate proceedings, other than as set forth elsewhere in this Agreement, on the part of the Purchaser are necessary to authorize
the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate the transactions contemplated
hereby and thereby. This Agreement has been, and each Ancillary Document to which the Purchaser or Merger Sub is a party shall be when
delivered, duly and validly executed and delivered by the Purchaser and Merger Sub and, assuming the due authorization, execution and
delivery of this Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall
constitute, the valid and binding obligation of the Purchaser and Merger Sub, enforceable against the Purchaser and Merger Sub in accordance
with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization
and moratorium laws and other laws of general application affecting the enforcement of creditors’ rights generally or by any applicable
statute of limitation or by any valid defense of set-off or counterclaim, and the fact that equitable remedies or relief (including the
remedy of specific performance) are subject to the discretion of the court from which such relief may be sought (collectively, the “Enforceability
Exceptions”).
3.3
Governmental Approvals. Except as otherwise described in Schedule 3.3, no Consent of or with any Governmental Authority,
on the part of the Purchaser or Merger Sub is required to be obtained or made in connection with the execution, delivery or performance
by the Purchaser and Merger Sub of this Agreement and each Ancillary Document to which the Purchaser or Merger Sub is a party or the
consummation by the Purchaser and Merger Sub of the transactions contemplated hereby and thereby, other than (a) pursuant to Antitrust
Laws, (b) such filings as contemplated by this Agreement, (c) any filings required with Nasdaq or the SEC with respect to the transactions
contemplated by this Agreement, (d) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue
sky” securities Laws, and the rules and regulations thereunder, and (e) where the failure to obtain or make such Consents or to
make such filings or notifications, would not reasonably be expected to have a Material Adverse Effect on the Purchaser.
1 Note to Draft:
Consider refreshing schedules to the date of this A&R BCA.
3.4
Non-Contravention. Except as otherwise described in Schedule 3.4, the execution and delivery by the Purchaser and Merger
Sub of this Agreement and each Ancillary Document to which it is a party, the consummation by the Purchaser and Merger Sub of the transactions
contemplated hereby and thereby, and compliance by the Purchaser and Merger Sub with any of the provisions hereof and thereof, will not
(a) conflict with or violate any provision of the Purchaser’s or Merger Sub’s respective Organizational Documents, (b) subject
to obtaining the Consents from Governmental Authorities referred to in Section 3.3 hereof, and the waiting periods referred
to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any
Law, Order or Consent applicable to the Purchaser, Merger Sub or any of their respective properties or assets, or (c) (i) violate, conflict
with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a
default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance
required by the Purchaser under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make
payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of the Purchaser
under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person
the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the
maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions
or provisions of, any Purchaser Material Contract, except for any deviations from any of the foregoing clauses (a), (b) or (c) that would
not reasonably be expected to have a Material Adverse Effect on the Purchaser.
3.5
Capitalization.
(a)
Purchaser is authorized to issue 111,000,000 shares of capital stock consisting of (i) 110,000,000 shares of Purchaser Common Stock including
(A) 100,000,000 shares of Purchaser Class A Common Stock and (B) 10,000,000 shares of Purchaser Class B Common Stock, and (ii) 1,000,000
shares of Purchaser Preferred Stock. The issued and outstanding Purchaser Securities as of the date of this Agreement are set forth on
Schedule 3.5(a). As of the date of this Agreement, there are no issued or outstanding shares of Purchaser Preferred Stock.
All outstanding Shares of Purchaser Common Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject
to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under
any provision of the DGCL, Purchaser’s Organizational Documents or any Contract to which Purchaser is a party. None of the outstanding
Purchaser Securities have been issued in violation of any applicable securities Laws.
(b)
Prior to giving effect to the Merger, Merger Sub is authorized to issue 1,000 shares of Merger Sub Common Stock, of which 1,000 shares
are issued and outstanding, and all of which are owned by the Purchaser. Prior to giving effect to the transactions contemplated by this
Agreement, other than Merger Sub, Purchaser does not have any Subsidiaries or own any equity interests in any other Person.
(c)
Except as set forth in Schedule 3.5(a) or Schedule 3.5(c) there are no (i) outstanding options, warrants, puts,
calls, convertible securities, preemptive or similar rights, (ii) bonds, debentures, notes or other Indebtedness having general voting
rights or that are convertible or exchangeable into securities having such rights or (iii) subscriptions or other rights, agreements,
arrangements, Contracts or commitments of any character (other than this Agreement and the Ancillary Documents), (A) relating to the
issued or unissued shares of Purchaser or (B) obligating Purchaser to issue, transfer, deliver or sell or cause to be issued, transferred,
delivered, sold or repurchased any options or shares or securities convertible into or exchangeable for such shares, or (C) obligating
Purchaser to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment
for such capital shares. Other than the Redemption or as expressly set forth in this Agreement, there are no outstanding obligations
of Purchaser to repurchase, redeem or otherwise acquire any shares of Purchaser or to provide funds to make any investment (in the form
of a loan, capital contribution or otherwise) in any Person. Except as set forth in Schedule 3.5(c), there are no stockholders
agreements, voting trusts or other agreements or understandings to which Purchaser is a party with respect to the voting of any shares
of Purchaser.
(d)
All Indebtedness of Purchaser as of the date of this Agreement is disclosed on Schedule 3.5(d). No Indebtedness of Purchaser
contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by Purchaser or (iii)
the ability of Purchaser to grant any Lien on its properties or assets.
(e)
Since the date of formation of Purchaser, and except as contemplated by this Agreement, Purchaser has not declared or paid any distribution
or dividend in respect of its shares and has not repurchased, redeemed or otherwise acquired any of its shares, and Purchaser’s
board of directors has not authorized any of the foregoing.
3.6
SEC Filings and Purchaser Financials.
(a)
The Purchaser, since the IPO, has filed all forms, reports, schedules, statements, registration statements, prospectuses and other documents
required to be filed or furnished by the Purchaser with the SEC under the Securities Act and/or the Exchange Act, together with any amendments,
restatements or supplements thereto, and will file all such forms, reports, schedules, statements and other documents required to be
filed subsequent to the date of this Agreement. Except to the extent available on the SEC’s web site through EDGAR, the Purchaser
has delivered to the Company copies in the form filed with the SEC of all of the following: (i) the Purchaser’s annual reports
on Form 10-K for each fiscal year of the Purchaser beginning with the first year the Purchaser was required to file such a form, (ii)
the Purchaser’s quarterly reports on Form 10-Q for each fiscal quarter that the Purchaser filed such reports to disclose its quarterly
financial results in each of the fiscal years of the Purchaser referred to in clause (i) above, (iii) all other forms, reports, registration
statements, prospectuses and other documents (other than preliminary materials) filed by the Purchaser with the SEC since the beginning
of the first fiscal year referred to in clause (i) above (the forms, reports, registration statements, prospectuses and other documents
referred to in clauses (i), (ii) and (iii) above, whether or not available through EDGAR, are, collectively, the “SEC Reports”)
and (iv) all certifications and statements required by (A) Rules 13a-14 or 15d-14 under the Exchange Act, and (B) 18 U.S.C. §1350
(Section 906 of SOX) with respect to any report referred to in clause (i) above (collectively, the “Public Certifications”).
Except for any changes (including any required revisions to or restatements of the Purchaser Financials (defined below) or the SEC Reports)
to the Purchaser’s accounting or classification of Purchaser’s outstanding redeemable shares as temporary, as opposed to
permanent, equity that may be required as a result of related statements by the SEC staff or recommendations or requirements of the Purchaser’s
auditors (the, “SEC SPAC Accounting Changes”), the SEC Reports (x) were prepared in all material respects in
accordance with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations thereunder
and (y) did not, as of their respective effective dates (in the case of SEC Reports that are registration statements filed pursuant to
the requirements of the Securities Act) and at the time they were filed with the SEC (in the case of all other SEC Reports) contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they were made, not misleading. The Public Certifications are
each true as of their respective dates of filing. As used in this Section 3.6, the term “file” shall be broadly
construed to include any manner permitted by SEC rules and regulations in which a document or information is furnished, supplied or otherwise
made available to the SEC. As of the date of this Agreement, (A) the Purchaser Public Units, the shares of Purchaser Common Stock and
the Purchaser Rights are listed on Nasdaq, (B) the Purchaser has not received any written deficiency notice from Nasdaq relating to the
continued listing requirements of such Purchaser Securities, (C) there are no Actions pending or, to the Knowledge of the Purchaser,
threatened against the Purchaser by the Financial Industry Regulatory Authority with respect to any intention by such entity to suspend,
prohibit or terminate the quoting of such Purchaser Securities on Nasdaq and (D) such Purchaser Securities are in compliance with all
of the applicable corporate governance rules of Nasdaq.
(b)
Except for the SEC SPAC Accounting Changes, the financial statements and notes of the Purchaser contained or incorporated by reference
in the SEC Reports (the “Purchaser Financials”), fairly present in all material respects the financial position
and the results of operations, changes in shareholders’ equity, and cash flows of the Purchaser at the respective dates of and
for the periods referred to in such financial statements, all in accordance with (i) GAAP methodologies applied on a consistent basis
throughout the periods involved and (ii) Regulation S-X or Regulation S-K, as applicable (except as may be indicated in the notes thereto
and for the omission of notes and audit adjustments in the case of unaudited quarterly financial statements to the extent permitted by
Regulation S-X or Regulation S-K, as applicable).
(c)
Except for the SEC SPAC Accounting Changes or as and to the extent reflected or reserved against in the Purchaser Financials, the Purchaser
has not incurred any Liabilities or obligations of the type required to be reflected on a balance sheet in accordance with GAAP that
are not adequately reflected or reserved on or provided for in the Purchaser Financials, other than Liabilities of the type required
to be reflected on a balance sheet in accordance with GAAP that have been incurred since the Purchaser’s formation in the ordinary
course of business.
3.7
Absence of Certain Changes. As of the date of this Agreement, except as set forth in Schedule 3.7, the Purchaser has,
(a) since its formation, conducted no business other than its formation, the public offering of its securities (and the related private
offerings), public reporting and its search for an initial Business Combination as described in the IPO Prospectus (including the investigation
of the Company and the negotiation and execution of this Agreement) and related activities and (b) since January 1, 2022, not been subject
to a Material Adverse Effect on the Purchaser.
3.8
Compliance with Laws. The Purchaser is, and has since its formation been, in compliance with all material Laws applicable to it
and the conduct of its business, and the Purchaser has not received written notice alleging any violation of applicable Law in any material
respect by the Purchaser.
3.9
Actions; Orders; Permits. There is no pending or, to the Knowledge of the Purchaser, threatened Action to which the Purchaser
is subject which would reasonably be expected to have a Material Adverse Effect on the Purchaser. There is no material Action that the
Purchaser has pending against any other Person. The Purchaser is not subject to any material Orders of any Governmental Authority, nor
are any such Orders pending. The Purchaser holds all material Permits necessary to lawfully conduct its business as presently conducted,
and to own, lease and operate its assets and properties, all of which are in full force and effect, except where the failure to hold
such Consent or for such Consent to be in full force and effect would not reasonably be expected to have a Material Adverse Effect on
the Purchaser.
3.10
Taxes and Returns.
(a)
Each of the Purchaser and the Merger Sub has or will have timely filed, or caused to be timely filed, all federal and other material
Tax Returns required to be filed by it (taking into account all available extensions), which such Tax Returns are accurate and complete
in all material respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all federal and other material
Taxes required to be paid, collected or withheld, other than such Taxes for which adequate reserves in the Purchaser Financials have
been established. Schedule 3.10(a) sets forth each jurisdiction where the Purchaser or the Merger Sub files or is required to file
a Tax Return.
(b)
There is no Action currently pending or, to the Knowledge of the Purchaser, threatened against the Purchaser or the Merger Sub by a Governmental
Authority in a jurisdiction where the Purchaser or the Merger Sub does not file Tax Returns that it is or may be subject to taxation
by that jurisdiction.
(c)
Neither the Purchaser nor the Merger Sub is being audited by any Tax authority or has been notified in writing or, to the Knowledge of
the Purchaser, orally by any Tax authority that any such audit is contemplated or pending. To the Knowledge of the Purchaser, there are
no claims, assessments, audits, examinations, investigations or other Actions pending against the Purchaser or the Merger Sub in respect
of any Tax, and neither the Purchaser nor the Merger Sub has been notified in writing of any proposed Tax claims or assessments against
it (other than, in each case, claims or assessments for which adequate reserves in the Purchaser Financials have been established).
(d)
There are no Liens with respect to any Taxes upon the assets of the Purchaser or the Merger Sub, other than Permitted Liens.
(e)
Each of the Purchaser and the Merger Sub has collected or withheld all material Taxes currently required to be collected or withheld
by it, and all such material Taxes have been paid to the appropriate Governmental Authorities or set aside in appropriate accounts for
future payment when due.
(f)
Neither the Purchaser nor the Merger Sub has any outstanding waivers or extensions of any applicable statute of limitations to assess
any amount of Taxes. There are no outstanding requests by the Purchaser or the Merger Sub for any extension of time within which to file
any Tax Return or within which to pay any Taxes shown to be due on any Tax Return.
(g)
Neither the Purchaser nor the Merger Sub will be required to include any material item of income in, or exclude any material item of
deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any of the following
that occurred or exists on or prior to the Closing Date: (A) a “closing agreement” as described in Section 7121 of the Code
(or any corresponding or similar provision of state, local or non-U.S. income Tax Law) or (B) a change in the accounting method of the
Purchaser or the Merger Sub pursuant to Section 481 of the Code or any similar provision of the Code or the corresponding Tax Laws of
any nation, state or locality.
(h)
Neither the Purchaser nor the Merger Sub has participated in, or sold, distributed or otherwise promoted, any “reportable transaction,”
as defined in U.S. Treasury Regulation section 1.6011-4.
(i)
Neither the Purchaser nor the Merger Sub is a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation
agreement (excluding commercial agreements entered into in the ordinary course of business the primary purpose of which is not the sharing
of Taxes) with respect to Taxes (including advance pricing agreement or closing agreement with any Governmental Authority) that will
be binding on the Purchaser or the Merger Sub with respect to any period ending after the Closing Date.
(j)
Neither the Purchaser nor the Merger Sub has requested, or is it the subject of or bound by any private letter ruling from any Governmental
Authority with respect to any Taxes, nor is any such request outstanding.
(k)
Neither the Purchaser nor the Merger Sub: (i) has constituted either a “distributing corporation” or a “controlled
corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of securities (to any Person or entity
that is not a member of the consolidated group of which the Company is the common parent corporation) qualifying for, or intended to
qualify for, Tax-free treatment under Section 355 of the Code (A) within the two-year period ending on the date hereof or (B) in a distribution
which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of
Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement; or (ii) is or has been a member of any
consolidated, combined, unitary or affiliated group of corporations for any Tax purposes (other than a group of which the Company is
or was the common parent corporation) for any taxable period for which the statute of limitations has not expired.
(l)
The Purchaser is not aware of any fact or circumstance that would reasonably be expected to prevent the Merger from qualifying as a “reorganization”
within the meaning of Section 368(a) of the Code.
(m)
Since the date of its formation, neither the Purchaser nor the Merger Sub has (i) changed any Tax accounting methods, policies or procedures
except as required by a change in Law, (ii) made, revoked, or amended any material Tax election, (iii) filed any amended Tax Returns
or claim for refund or (iv) entered into any closing agreement affecting or otherwise settled or compromised any material Tax Liability
or refund.
3.11
Employees and Employee Benefit Plans. The Purchaser does not (a) have any paid employees or (b) maintain, sponsor, contribute
to or otherwise have any Liability under, any Benefit Plans.
3.12
Properties. The Purchaser does not own, license or otherwise have any right, title or interest in any material Intellectual Property.
The Purchaser does not own or lease any material real property or material Personal Property.
3.13
Material Contracts.
(a)
Except as set forth on Schedule 3.13(a), other than this Agreement and the Ancillary Documents, there are no Contracts to
which the Purchaser is a party or by which any of its properties or assets may be bound, subject or affected, which (i) creates or imposes
a Liability greater than $100,000, (ii) may not be cancelled by the Purchaser on less than sixty (60) days’ prior notice without
payment of a material penalty or termination fee or (iii) prohibits, prevents, restricts or impairs in any material respect any business
practice of the Purchaser as its business is currently conducted, any acquisition of material property by the Purchaser, or restricts
in any material respect the ability of the Purchaser to engage in business as currently conducted by it or compete with any other Person
(each, a “Purchaser Material Contract”). All Purchaser Material Contracts have been made available to the Company
other than those that are exhibits to the SEC Reports.
(b)
With respect to each Purchaser Material Contract: (i) the Purchaser Material Contract was entered into at arms’ length and in the
ordinary course of business; (ii) the Purchaser Material Contract is legal, valid, binding and enforceable in all material respects against
the Purchaser and, to the Knowledge of the Purchaser, the other parties thereto, and is in full force and effect (except, in each case,
as such enforcement may be limited by the Enforceability Exceptions); (iii) the Purchaser is not in breach or default in any material
respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default
in any material respect by the Purchaser, or permit termination or acceleration by the other party, under such Purchaser Material Contract;
and (iv) to the Knowledge of the Purchaser, no other party to any Purchaser Material Contract is in breach or default in any material
respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default
by such other party, or permit termination or acceleration by the Purchaser under any Purchaser Material Contract.
3.14
Transactions with Affiliates. Schedule 3.14 sets forth a true, correct and complete list of the Contracts and arrangements
that are in existence as of the date of this Agreement under which there are any existing or future Liabilities or obligations between
the Purchaser and any (a) present or former director, officer or employee or Affiliate of the Purchaser, or any immediate family member
of any of the foregoing, or (b) record or beneficial owner of more than five percent (5%) of the Purchaser’s outstanding capital
stock as of the date hereof.
3.15
Merger Sub Activities. Since its formation, Merger Sub has not engaged in any business activities other than as contemplated by
this Agreement, does not own directly or indirectly any ownership, equity, profits or voting interest in any Person and has no assets
or Liabilities except those incurred in connection with this Agreement, the Transactions and the Ancillary Documents to which it is a
party, other than this Agreement and the Ancillary Documents to which it is a party, Merger Sub is not party to or bound by any Contract.
3.16
Investment Company Act. As of the date of this Agreement, the Purchaser is not an “investment company” or a Person
directly or indirectly “controlled” by or acting on behalf of an “investment company”, or required to register
as an “investment company”, in each case within the meaning of the Investment Company Act of 1940, as amended.
3.17
Finders and Brokers. Except as set forth on Schedule 3.17, no broker, finder or investment banker is entitled to any
brokerage, finder’s or other fee or commission from the Purchaser, the Company or any of their respective Affiliates in connection
with the transactions contemplated hereby based upon arrangements made by or on behalf of the Purchaser.
3.18
Ownership of Stockholder Merger Consideration. All shares of Purchaser Common Stock to be issued and delivered to the Company
Stockholders as Stockholder Merger Consideration in accordance with Article I shall be, upon issuance and delivery of such Purchaser
Common Stock, fully paid and non-assessable, free and clear of all Liens, other than restrictions arising from applicable securities
Laws, any applicable Lock-Up Agreement, and any Liens incurred by any Company Stockholder, and the issuance and sale of such Purchaser
Common Stock pursuant hereto will not be subject to or give rise to any preemptive rights or rights of first refusal.
3.19
Certain Business Practices.
(a)
Neither the Purchaser, nor any of its Representatives acting on its behalf, has (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices
Act of 1977 or any other local or foreign anti-corruption or bribery Law, (iii) made any other unlawful payment or (iv) since the formation
of the Purchaser, directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any
customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder the Purchaser or assist it
in connection with any actual or proposed transaction.
(b)
The operations of the Purchaser are and have been conducted at all times in material compliance with money laundering statutes in all
applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any Governmental Authority, and no Action involving the Purchaser with respect to any of the foregoing is pending or,
to the Knowledge of the Purchaser, threatened.
(c)
None of the Purchaser or any of its directors or officers, or, to the Knowledge of the Purchaser, any other Representative acting on
behalf of the Purchaser is currently identified on the specially designated nationals or other blocked person list or otherwise currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”),
and the Purchaser has not, in the last five (5) fiscal years, directly or indirectly, used any funds, or loaned, contributed or otherwise
made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any
other country sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation
of, any U.S. sanctions administered by OFAC.
3.20
Insurance. Schedule 3.20 lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual
premium and type of policy) held by the Purchaser relating to the Purchaser or its business, properties, assets, directors, officers
and employees, copies of which have been provided to the Company. All premiums due and payable under all such insurance policies have
been timely paid and the Purchaser is otherwise in material compliance with the terms of such insurance policies. All such insurance
policies are in full force and effect, and to the Knowledge of the Purchaser, there is no threatened termination of, or material premium
increase with respect to, any of such insurance policies. There have been no insurance claims made by the Purchaser. The Purchaser has
each reported to its insurers all material claims and pending circumstances that would reasonably be expected to result in a claim.
3.21
Independent Investigation. The Purchaser has conducted its own independent investigation, review and analysis of the business,
results of operations, prospects, condition (financial or otherwise) or assets of the Company, and acknowledges that it has been provided
adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Company for such
purpose. The Purchaser acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions
contemplated hereby, it has relied solely upon its own investigation and the express representations and warranties of the Company set
forth in this Agreement (including the related portions of the Company Disclosure Schedules) and in any certificate delivered to the
Purchaser pursuant hereto, and the information provided by or on behalf of the Company for the Proxy Statement; and (b) none of the Company
nor its respective Representatives have made any representation or warranty as to the Company, or this Agreement, except as expressly
set forth in this Agreement (including the related portions of the Company Disclosure Schedules) or in any certificate delivered to the
Purchaser pursuant hereto, or with respect to the information provided by or on behalf of the Company for the Proxy Statement.
3.22
Information Supplied. None of the information supplied or to be supplied by the Purchaser expressly for inclusion or incorporation
by reference: (a) in any report, form, registration or other filing made with any Governmental Authority (including the SEC) with respect
to the transactions contemplated by this Agreement or any Ancillary Documents; (b) in the Proxy Statement; or (c) in the mailings or
other distributions to the Company’s stockholders and/or prospective investors with respect to the consummation of the transactions
contemplated by this Agreement or in any amendment to any of documents identified in (a) through (c), will, when filed, made available,
mailed or distributed, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not
misleading. None of the information supplied or to be supplied by the Purchaser expressly for inclusion or incorporation by reference
in any of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing will, when filed or distributed,
as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the
foregoing, the Purchaser makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the
Company or its Affiliates.
3.23
No Other Representations. Except for the representations and warranties expressly made by the Purchaser in this Article III
(as modified by the Purchaser Disclosure Schedules) or as expressly set forth in an Ancillary Document, neither the Purchaser nor any
other Person on its behalf makes any express or implied representation or warranty with respect to any of the Purchaser or the Merger
Sub or their respective business, operations, assets or Liabilities, or the transactions contemplated by this Agreement or any of the
other Ancillary Documents, and the Purchaser and Merger Sub each hereby expressly disclaims any other representations or warranties,
whether implied or made by the Purchaser, Merger Sub or any of their respective Representatives. Except for the representations and warranties
expressly made by the Purchaser and Merger Sub in this Article III (as modified by the Purchaser Disclosure Schedules) or in an Ancillary
Document, the Purchaser hereby expressly disclaims all liability and responsibility for any representation, warranty, projection, forecast,
statement or information made, communicated or furnished (orally or in writing) to the Company or any of its Representatives (including
any opinion, information, projection or advice that may have been or may be provided to the Company or any of its Representatives by
any Representative of the Purchaser or Merger Sub), including any representations or warranties regarding the probable success or profitability
of the businesses of the Purchaser or Merger Sub.
Article
IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except
as set forth in the disclosure schedules delivered by the Company to the Purchaser on the date of this Agreement2 (the “Company
Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement
to which they refer, the Company hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing, as follows:
4.1
Organization and Standing. The Company is a corporation duly incorporated, validly existing and in good standing under the NRS
and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being
conducted. The Company is duly qualified or licensed and in good standing in the jurisdiction in which it is incorporated or registered
and in each other jurisdiction where it does business or operates to the extent that the character of the property owned, or leased or
operated by it or the nature of the business conducted by it makes such qualification or licensing necessary. Schedule 4.1
lists all jurisdictions in which the Company is qualified to conduct business and all names other than its legal name under which the
Company does business. The Company has provided to the Purchaser accurate and complete copies of its Organizational Documents, each as
amended to date and as currently in effect. The Company is not in violation of any provision of its Organizational Documents in any material
respect.
4.2
Authorization; Binding Agreement. The Company has all requisite corporate power and authority to execute and deliver this Agreement
and each Ancillary Document to which it is or is required to be a party, to perform the Company’s obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby, subject to obtaining the Required Company Stockholder Approval. The
execution and delivery of this Agreement and each Ancillary Document to which the Company is or is required to be a party and the consummation
of the transactions contemplated hereby and thereby, (a) have been duly and validly authorized by the Company’s board of directors
in accordance with the Company’s Organizational Documents, the NRS, any other applicable Law or any Contract to which the Company
is a party or by which it or its securities are bound and (b) other than the Required Company Stockholder Approval, no other corporate
proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document
to which it is a party or to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary
Document to which the Company is or is required to be a party shall be when delivered, duly and validly executed and delivered by the
Company and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other parties
hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to the Enforceability Exceptions. The Company’s board of directors, by
resolutions duly adopted at a meeting duly called and held (i) determined that this Agreement and the Merger and the other transactions
contemplated hereby are advisable, fair to, and in the best interests of, the Company and its stockholders, (ii) approved this Agreement
and the Merger and the other transactions contemplated by this Agreement in accordance with the NRS, (iii) directed that this Agreement
be submitted to the Company’s stockholders for adoption and (iv) resolved to recommend that the Company stockholders adopt this
Agreement. The Voting Agreements delivered by the Company include holders of Company Common Stock representing at least the Required
Company Stockholder Approval, and such Voting Agreements are in full force and effect.
2 Note to Draft:
AFS to provide updated schedules.
4.3
Capitalization.
(a)
The Company is authorized to issue (i) 190,000,000 shares of Company Common Stock, 29,107,431 shares of which shares are issued and outstanding
and (ii) 10,000,000 shares of Company Preferred Stock, none of which are issued and outstanding. Prior to giving effect to the transactions
contemplated by this Agreement, all of the issued and outstanding share of Company Common Stock and other equity interests of the Company
are set forth on Schedule 4.3(a), along with the beneficial and record owners thereof, all of which shares and other equity
interests are owned free and clear of any Liens other than those imposed under the Company Charter. All of the outstanding shares and
other equity interests of the Company have been duly authorized, are fully paid and non-assessable and not in violation of any purchase
option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the NRS, any other applicable
Law, the Company Charter or any Contract to which the Company is a party or by which it or its securities are bound. The Company holds
no shares or other equity interests of the Company in its treasury. None of the outstanding shares or other equity interests of the Company
were issued in violation of any applicable securities Laws.
(b)
The Company has reserved a sufficient number of shares of Company Common Stock for issuance to officers, directors, employees and consultants
of the Company upon exercise of the currently outstanding Company Options. Schedule 4.3(b) sets forth the beneficial and
record owners of all outstanding Company Options (including the grant date, number and type of shares issuable thereunder, the exercise
price, the expiration date and any vesting schedule). Other than as set forth on Schedule 4.3(b), there are no Company Convertible
Securities, or preemptive rights or rights of first refusal or first offer, nor are there any Contracts, commitments, arrangements or
restrictions to which the Company or, to the Knowledge of the Company, any of its stockholders is a party or bound relating to any equity
securities of the Company, whether or not outstanding. There are no outstanding or authorized equity appreciation, phantom equity or
similar rights with respect to the Company. Except as set forth on Schedule 4.3(b), there are no voting trusts, proxies,
stockholder agreements or any other agreements or understandings with respect to the voting of the Company’s equity interests.
Except as set forth in the Company Charter, there are no outstanding contractual obligations of the Company to repurchase, redeem or
otherwise acquire any equity interests or securities of the Company, nor has the Company granted any registration rights to any Person
with respect to the Company’s equity securities. All of the Company’s securities have been granted, offered, sold and issued
in compliance with all applicable securities Laws. As a result of the consummation of the transactions contemplated by this Agreement,
no equity interests of the Company are issuable and no rights in connection with any interests, warrants, rights, options or other securities
of the Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
(c)
Except as disclosed in the Company Financials, since January 1, 2021, the Company has not declared or paid any distribution or dividend
in respect of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interests of the Company, and the
board of directors of the Company has not authorized any of the foregoing.
(d)
Each grant of a Company Option was duly authorized by all necessary corporate action, and (i) the stock option agreement governing such
grant was duly executed and delivered by each party thereto; (ii) each such grant was made in accordance with all applicable Laws; and
(iii) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of
the Company.
4.4
No Subsidiaries. The Company has no Subsidiaries provided, that, notwithstanding anything to the contrary contained in this Agreement,
in the event of the breach of the foregoing representation and warranty, without limiting any rights or remedies available under this
Agreement or applicable Law, any reference in this Agreement to the Company will include its Subsidiaries to the extent reasonably applicable.
The Company does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or
exercisable for any equity or similar interest in, any other corporation, partnership, joint venture or business association or other
entity.
4.5
Governmental Approvals. Except as otherwise described in Schedule 4.5, no Consent of or with any Governmental Authority
on the part of the Company is required to be obtained or made in connection with the execution, delivery or performance by the Company
of this Agreement or any Ancillary Documents or the consummation by the Company of the transactions contemplated hereby or thereby other
than (a) such filings as are expressly contemplated by this Agreement, (b) pursuant to Antitrust Law, or (c) where the failure to obtain
or make such Consents or to make such filings or notifications, would not, individually or in the aggregate, have or reasonably be expected
to have a material and adverse effect upon the Company, taken as a whole, or its abilities to perform its obligations under this Agreement
or the Ancillary Documents or consummate the transactions contemplated hereby or thereby.
4.6
Non-Contravention. Except as otherwise described in Schedule 4.6, the execution and delivery by the Company of this
Agreement and each Ancillary Document to which the Company is or is required to be a party or otherwise bound, and the consummation by
the Company of the transactions contemplated hereby and thereby and compliance by the Company with any of the provisions hereof and thereof,
will not (a) conflict with or violate any provision of the Company’s Organizational Documents, (b) subject to obtaining the Consents
from Governmental Authorities referred to in Section 4.5 hereof, the waiting periods referred to therein having expired, and
any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any Law, Order or Consent applicable
to the Company or any of its properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default
(or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal,
suspension, cancellation or modification of, (iv) accelerate the performance required by the Company under, (v) result in a right of
termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the
creation of any Lien upon any of the properties or assets of the Company under, (viii) give rise to any obligation to obtain any third
party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim
a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any
right, benefit, obligation or other term under, any of the terms, conditions or provisions of any Company Material Contract.
4.7
Financial Statements.
(a)
As used herein, the term “Company Financials” means the (i) audited financial statements of the Company (including,
in each case, any related notes thereto), consisting of the balance sheets of the Company as of December 31, 2021 and December 31, 2020,
and the related audited income statements, changes in stockholder equity and statements of cash flows for the fiscal years then ended,
each audited by a PCAOB qualified auditor in accordance with GAAP (the “Audited Company Financials”), (ii)
the unaudited financial statements, consisting of the condensed balance sheet of the Company as of December 31, 2022 (the “Balance
Sheet Date”), and the related unaudited condensed income statement, changes in member equity and statement of cash flows
for the fiscal year then ended and (iii) once available and delivered by the Company, the audited financial statements prepared pursuant
to Section 5.4(b). True and correct copies of the Company Financials have been provided to the Purchaser. The Company Financials
(i) accurately reflect the books and records of the Company as of the times and for the periods referred to therein, (ii) were prepared
in accordance with GAAP, consistently applied throughout and among the periods involved (except that the unaudited statements exclude
the footnote disclosures and other presentation items required for GAAP and exclude year-end adjustments which will not be material in
amount), (iii) comply with all applicable accounting requirements under the Securities Act and the rules and regulations of the SEC thereunder,
and (iv) fairly present in all material respects the financial position of the Company as of the respective dates thereof and the results
of the operations and cash flows of the Company for the periods indicated. The Company has never been subject to the reporting requirements
of Sections 13(a) and 15(d) of the Exchange Act.
(b)
The Company maintains accurate books and records reflecting its assets and Liabilities and maintains proper and adequate internal accounting
controls that provide reasonable assurance that (i) the Company does not maintain any off-the-book accounts and that the Company’s
assets are used only in accordance with the Company’s management directives, (ii) transactions are executed with management’s
authorization, (iii) transactions are recorded as necessary to permit preparation of the financial statements of the Company and to maintain
accountability for the Company’s assets, (iv) access to the Company’s assets is permitted only in accordance with management’s
authorization, (v) the reporting of the Company’s assets is compared with existing assets at regular intervals and verified for
actual amounts, and (vi) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures
are implemented to effect the collection of accounts, notes and other receivables on a current and timely basis. All of the financial
books and records of the Company are complete and accurate in all material respects and have been maintained in the ordinary course consistent
with past practice and in accordance with applicable Laws. The Company has not been subject to or involved in any material fraud that
involves management or other employees who have a significant role in the internal controls over financial reporting of the Company.
In the past five (5) years, neither the Company nor its Representatives have received any written complaint, allegation, assertion or
claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or its internal accounting
controls, including any material written complaint, allegation, assertion or claim that the Company has engaged in questionable accounting
or auditing practices.
(c)
The Company does not have any Indebtedness other than the Indebtedness set forth on Schedule 4.7(c), which schedule sets
for the amounts (including principal and any accrued but unpaid interest or other obligations) with respect to such Indebtedness. Except
as disclosed on Schedule 4.7(c), no Indebtedness of the Company contains any restriction upon (i) the prepayment of any of
such Indebtedness, (ii) the incurrence of Indebtedness by the Company, or (iii) the ability of the Company to grant any Lien on its properties
or assets.
(d)
Except as set forth on Schedule 4.7(d), the Company is not subject to any Liabilities or obligations (whether or not required
to be reflected on a balance sheet prepared in accordance with GAAP), except for those that are either (i) adequately reflected or reserved
on or provided for in the balance sheet of the Company as of the Balance Sheet Date contained in the Company Financials or (ii) not material
and that were incurred after the Balance Sheet Date in the ordinary course of business consistent with past practice (other than Liabilities
for breach of any Contract or violation of any Law).
(e)
All financial projections with respect to the Company that were prepared and delivered by the Company to the Purchaser or its Representatives
were prepared in good faith using assumptions that the Company believes to be reasonable.
(f)
All accounts, notes and other receivables, whether or not accrued, and whether or not billed, of the Company (the “Accounts
Receivable”) arose from sales actually made or services actually performed in the ordinary course of business and represent
valid obligations to the Company arising from its business. None of the Accounts Receivable are subject to any right of recourse, defense,
deduction, return of goods, counterclaim, offset, or set off on the part of the obligor in excess of any amounts reserved therefore on
the Company Financials. All of the Accounts Receivable are, to the Knowledge of the Company, fully collectible according to their terms
in amounts not less than the aggregate amounts thereof carried on the books of the Company (net of reserves) within ninety (90) days.
4.8
Absence of Certain Changes. Except as set forth on Schedule 4.8, since December 31, 2022, the Company has (a) conducted
its business only in the ordinary course of business consistent with past practice, (b) not been subject to a Material Adverse Effect
and (c) has not taken any action or committed or agreed to take any action that would be prohibited by Section 5.2(b) (without
giving effect to Schedule 5.2) if such action were taken on or after the date hereof without the consent of the Purchaser.
4.9
Compliance with Laws. The Company is not and has not been in material conflict or material non-compliance with, or in material
default or violation of, nor has the Company received, since January 1, 2018, any written or, to the Knowledge of the Company, oral notice
of any material conflict or non-compliance with, or material default or violation of, any applicable Laws by which it or any of its properties,
assets, employees, business or operations are or were bound or affected.
4.10
Company Permits. The Company (and its employees who are legally required to be licensed by a Governmental Authority in order to
perform his or her duties with respect to his or her employment with the Company), holds all Permits necessary to lawfully conduct in
all material respects its business as presently conducted, and to own, lease and operate its assets and properties (collectively, the
“Company Permits”). The Company has made available to the Purchaser true, correct and complete copies of all
material Company Permits, all of which material Company Permits are listed on Schedule 4.10. All of the Company Permits are
in full force and effect, and no suspension or cancellation of any of the Company Permits is pending or, to the Company’s Knowledge,
threatened. The Company is not in violation in any material respect of the terms of any Company Permit, and the Company has not received
any written or, to the Knowledge of the Company, oral notice of any Actions relating to the revocation or modification of any Company
Permit.
4.11
Litigation. Except as described on Schedule 4.11, there is no (a) Action of any nature currently pending or, to the Company’s
Knowledge, threatened, (and no such Action has been brought or, to the Company’s Knowledge, threatened in the past five (5) years);
or (b) Order now pending or outstanding or that was rendered by a Governmental Authority in the past five (5) years, in either case of
(a) or (b) by or against the Company, its current or former directors, officers or equity holders (provided, that any litigation involving
the directors, officers or equity holders of the Company must be related to the Company’s business, equity securities or assets),
its business, equity securities or assets. The items listed on Schedule 4.11, if finally determined adversely to the Company,
will not have, either individually or in the aggregate, a Material Adverse Effect upon the Company. In the past five (5) years, none
of the current or former officers, senior management or directors of the Company have been charged with, indicted for, arrested for,
or convicted of any felony or any crime involving fraud.
4.12
Material Contracts.
(a)
Schedule 4.12(a) sets forth a true, correct and complete list of, and the Company has made available to the Purchaser (including
written summaries of oral Contracts), true, correct and complete copies of, each Contract to which the Company is a party or by which
the Company, or any of its properties or assets are bound or affected (each Contract required to be set forth on Schedule 4.12(a),
a “Company Material Contract”) that:
(i)
contains covenants that limit the ability of the Company (A) to compete in any line of business or with any Person or in any geographic
area or to sell, or provide any service or product or solicit any Person, including any non-competition covenants, employee and customer
non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (B) to purchase or acquire
an interest in any other Person;
(ii)
involves any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement relating
to the formation, creation, operation, management or control of any partnership or joint venture;
(iii)
involves any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other
derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature
whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(iv)
evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of the Company having an outstanding principal
amount in excess of $200,000;
(v)
involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess
of $200,000 (other than in the ordinary course of business consistent with past practice) or shares or other equity interests of the
Company or another Person;
(vi)
relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other
entity or its business or material assets or the sale of the Company, its business or material assets;
(vii)
by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Company under such Contract
or Contracts of at least $200,000 per year or $500,000 in the aggregate;
(viii)
is with any Top Customer or Top Supplier;
(ix)
obligates the Company to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess
of $200,000;
(x)
is between the Company and any directors, officers or employees of the Company (other than at-will employment arrangements with employees
entered into in the ordinary course of business consistent with past practice), including all non-competition, severance and indemnification
agreements, or any Related Person;
(xi)
obligates the Company to make any capital commitment or expenditure in excess of $250,000 (including pursuant to any joint venture);
(xii)
relates to a material settlement entered into within three (3) years prior to the date of this Agreement or under which the Company has
outstanding obligations (other than customary confidentiality obligations);
(xiii)
provides another Person (other than in the ordinary course of business consistent with past practice) with a power of attorney;
(xiv)
are required to be disclosed as a Company IP License or Outbound IP License pursuant to Section 4.13; or
(xv)
that will be required to be filed with the Proxy Statement under applicable SEC requirements or would otherwise be required to be filed
by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities
Act as if the Company was the registrant.
(b)
Except as disclosed in Schedule 4.12(b), with respect to each Company Material Contract: (i) such Company Material Contract
is valid and binding and enforceable in all respects against the Company party thereto and, to the Knowledge of the Company, each other
party thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions);
(ii) the consummation of the transactions contemplated by this Agreement will not affect the validity or enforceability of any Company
Material Contract; (iii) the Company is not in breach or default in any material respect, and no event has occurred that with the passage
of time or giving of notice or both would constitute a material breach or default by the Company, or permit termination or acceleration
by the other party thereto, under such Company Material Contract; (iv) to the Knowledge of the Company, no other party to such Company
Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving
of notice or both would constitute such a material breach or default by such other party, or permit termination or acceleration by the
Company, under such Company Material Contract; (v) the Company has not received written or, to the Knowledge of the Company, oral notice
of an intention by any party to any such Company Material Contract that provides for a continuing obligation by any party thereto to
terminate such Company Material Contract or amend the terms thereof, other than modifications in the ordinary course of business that
do not adversely affect the Company in any material respect; and (vi) the Company has not waived any material rights under any such Company
Material Contract.
4.13
Intellectual Property.
(a)
Schedule 4.13(a)(i) sets forth: (i) all U.S. and foreign registered Patents, Trademarks, Copyrights and Internet Assets and applications
in which the Company is the owner, applicant or assignee (“Company Registered IP”), specifying as to each item,
as applicable: (A) the nature of the item, including the title, (B) the owner of the item, and (C) the jurisdictions in which the item
is issued or registered or in which an application for issuance or registration has been filed and (D) the issuance, registration or
application numbers and dates. Schedule 4.13(a)(ii) sets forth all Intellectual Property licenses, sublicenses and other agreements
or permissions (“Company IP Licenses”) (other than “shrink wrap,” “click wrap,” and
“off the shelf” software agreements and other agreements for Software commercially available on reasonable terms to the public
generally with license, maintenance, support and other fees of less than $50,000 per year (collectively, “Off-the-Shelf Software”),
which are not required to be listed, although such licenses are “Company IP Licenses” as that term is used herein), under
which the Company is a licensee or otherwise is authorized to use or practice any Intellectual Property. Except as set forth on Schedule
4.13(a)(ii), the Company owns, or otherwise has a valid and enforceable right to use (either via the Company IP Licenses or as otherwise
permitted under applicable law (e.g. fair use)), free and clear of all Liens (other than Permitted Liens), all Intellectual Property
currently used, licensed or held for use by the Company, except as would not have a Material Adverse Effect. No item of Company Registered
IP that consists of a pending Patent application fails to identify all pertinent inventors, and for each Patent and Patent application
in the Company Registered IP, the Company has obtained valid assignments of inventions from each inventor. Except as set forth on Schedule
4.13(a)(iii), all Company Registered IP is owned exclusively by the Company without obligation to pay royalties, licensing fees, or
otherwise account to any third party with respect to such Company Registered IP, and the Company has recorded assignments with any applicable
domestic or foreign Intellectual Property offices or agencies so that the Company is the owner of record of all Company Registered IP.
(b)
Except as set forth on Schedule 4.13(a)(ii), the Company has a valid and enforceable license to use all Intellectual Property
that is the subject of the Company IP Licenses applicable to the Company, except as would not have a Material Adverse Effect. The Company
has performed all obligations imposed on it in the Company IP Licenses, has made all payments required to date, and the Company is not,
nor, to the Knowledge of the Company, is any other party thereto, in breach or default thereunder, nor has any event occurred that with
notice or lapse of time or both would constitute a default thereunder, except as would not have a Material Adverse Effect. The continued
use by the Company of the Intellectual Property that is the subject of the Company IP Licenses in the same manner that it is currently
being used is not restricted by any applicable license of the Company. Except as set forth on Schedule 4.13(b), all registrations
for Copyrights, Patents, Trademarks and Internet Assets that are owned by the Company are valid, in force and in good standing with all
required fees and maintenance fees due and owing having been paid with no Actions pending, and all applications to register any Copyrights,
Patents and Trademarks are pending and in good standing, all without challenge of any kind. The Company is not party to any Contract
that requires the Company to assign to any Person all of its rights in any Intellectual Property developed by the Company under such
Contract.
(c)
Schedule 4.13(c) sets forth all licenses, sublicenses and other agreements or permissions under which the Company is the licensor
(each, an “Outbound IP License”). The Company has performed all obligations imposed on it in the Outbound IP
Licenses, and the Company is not, nor, to the Knowledge of the Company, is any other party thereto, in breach or default thereunder,
nor has any event occurred that with notice or lapse of time or both would constitute a default thereunder.
(d)
Except as set forth on Schedule 4.13(d)(i), no Action is pending or, to the Company’s Knowledge, threatened against the Company
that challenges the validity, enforceability, ownership, or right to use, sell, license or sublicense, or that otherwise relates to,
any Intellectual Property currently owned, licensed, used or held for use by the Company, nor, to the Knowledge of the Company, is there
any reasonable basis for any such Action. Except as set forth on Schedule 4.13(d)(i), the Company has not received any written
or, to the Knowledge of the Company, oral notice or claim asserting or suggesting that any infringement, misappropriation, violation,
dilution or unauthorized use of the Intellectual Property of any other Person currently is or may currently be occurring as a consequence
of the business activities of the Company, nor to the Knowledge of the Company is there a reasonable basis therefor. There are no Orders
to which the Company is a party or its otherwise bound that (i) restrict the rights of the Company to use, transfer, license or enforce
any Intellectual Property owned by the Company, (ii) restrict the conduct of the business of the Company in order to accommodate a third
Person’s Intellectual Property, or (iii) other than the Outbound IP Licenses, grant any third Person any right with respect to
any Intellectual Property owned by the Company. Except as set forth on Schedule 4.13(d)(ii), the Company is not currently infringing,
and has not, in the past (5) years, infringed, misappropriated or violated any Intellectual Property of any other Person in any material
respect in connection with the ownership, use or license of any Intellectual Property owned or purported to be owned by the Company or,
to the Knowledge of the Company, otherwise in connection with the conduct of the respective businesses of the Company. To the Company’s
Knowledge, no third party is currently, or in the past five (5) years has been, infringing upon, misappropriating or otherwise violating
any Intellectual Property owned, licensed by, licensed to, or otherwise used or held for use by the Company (“Company IP”)
in any material respect.
(e)
All officers, directors, employees and independent contractors of the Company (and each of their respective Affiliates) have assigned
to the Company all material Intellectual Property arising from the services performed for the Company by such Persons. No current or
former officers, employees or independent contractors of the Company has claimed any ownership interest in any Intellectual Property
owned by the Company. To the Knowledge of the Company, there has been no violation of the Company’s policies or practices related
to protection of Company IP or any confidentiality or nondisclosure Contract relating to the Intellectual Property owned by the Company.
To the Company’s Knowledge, none of the employees of the Company is obligated under any Contract, or subject to any Order, that
would materially interfere with the use of such employee’s best efforts to promote the interests of the Company, or that would
materially conflict with the business of the Company as presently conducted. The Company has taken commercially reasonable steps in order
to protect the secrecy and confidentiality of the Company’s Trade Secrets, if any, and the company is not aware of any breach of
secrecy or confidentiality of any Company Trade Secret that would have a Material Adverse Effect.
(f)
To the Knowledge of the Company, in the past five (5) years, there has been no material unauthorized access to or compromise of the security,
confidentiality or integrity of third party information and data (including personally identifiable information) in the possession of
the Company, and no written or, to the Knowledge of the Company, oral complaint relating to an improper use or disclosure of, or a breach
in the security of, any such information or data has been received by the Company in the past five (5) years. The Company has complied
in all material respects with all applicable Laws and Contract requirements relating to privacy, personal data protection, and the collection,
processing and use of personal information and its own privacy policies and guidelines. Except as set forth on Schedule 4.13(f),
the operation of the business of the Company does not violate any right to privacy or publicity of any third person, or constitute
unfair competition or trade practices under applicable Law, except as would not have a Material Adverse Effect.
(g)
The consummation of any of the transactions contemplated by this Agreement will not result in the material breach, material modification,
cancellation, termination, suspension of, or acceleration of any payments with respect to, or release of source code because of (i) any
Contract providing for the license or other use of Intellectual Property owned by the Company, or (ii) any Company IP License. Following
the Closing, the Company shall be permitted to exercise all of the Company’ rights under such Contracts or Company IP Licenses
to the same extent that the Company would have been able to exercise had the transactions contemplated by this Agreement not occurred,
without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would
otherwise be required to pay in the absence of such transactions.
(h)
To the Knowledge of the Company, any Software that constitutes Company IP is free of all viruses, worms, Trojan horses and other material
known contaminants and does not contain any bugs, errors, or problems of a material nature that would disrupt its operation or have an
adverse impact on the operation of other Software. To the knowledge of the Company, it has not incorporated into its products or services
publicly available Software that is distributed as free, “copyleft,” open source Software that requires as a condition of
use, modification, or distribution of such Software that other Software or technology incorporated into, derived from, or distributed
with such Software (i) be disclosed or distributed in source code form, (ii) be licensed for the purpose of making derivative works,
or (iii) be redistributable at no or minimal charge.
4.14
Taxes and Returns.
(a)
The Company has or will have timely filed, or caused to be timely filed, all federal and other material Tax Returns required to be filed
by it (taking into account all available extensions), which Tax Returns are true, accurate, correct and complete in all material respects,
and has paid, collected or withheld, or caused to be paid, collected or withheld, all federal and other material Taxes required to be
paid, collected or withheld, other than such Taxes for which adequate reserves in the Company Financials have been established. Schedule
4.14(a) sets forth each jurisdiction where the Company files or is required to file a Tax Return.
(b)
There is no Action currently pending or, to the Knowledge of the Company, threatened against the Company by a Governmental Authority
in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(c)
The Company is not being audited by any Tax authority and has not been notified in writing or, to the Knowledge of the Company, orally
by any Tax authority that any such audit is contemplated or pending. To the Company’s Knowledge, there are no claims, assessments,
audits, examinations, investigations or other Actions pending against the Company in respect of any Tax, and the Company has not been
notified in writing of any proposed Tax claims or assessments against it (other than, in each case, claims or assessments for which adequate
reserves in the Company Financials have been established).
(d)
There are no Liens with respect to any Taxes upon the Company’s assets, other than Permitted Liens.
(e)
The Company has collected or withheld all material Taxes currently required to be collected or withheld by it, and all such material
Taxes have been paid to the appropriate Governmental Authorities or set aside in appropriate accounts for future payment when due.
(f)
The Company has no outstanding waivers or extensions of any applicable statute of limitations to assess any amount of Taxes. There are
no outstanding requests by the Company for any extension of time within which to file any Tax Return or within which to pay any Taxes
shown to be due on any Tax Return.
(g)
The Company will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income
for any taxable period (or portion thereof) ending after the Closing Date as a result of any of the following that occurred or exists
on or prior to the Closing Date: (A) a “closing agreement” as described in Section 7121 of the Code (or any corresponding
or similar provision of state, local or non-U.S. income Tax Law) or (B) a change in the accounting method of the Company pursuant to
Section 481 of the Code or any similar provision of the Code or the corresponding Tax Laws of any nation, state or locality.
(h)
The Company has not participated in, or sold, distributed or otherwise promoted, any “reportable transaction,” as defined
in U.S. Treasury Regulation section 1.6011-4.
(i)
The Company is not a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement, (excluding
commercial agreements entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes) with
respect to Taxes (including advance pricing agreement or closing agreement with any Governmental Authority) that will be binding on the
Company with respect to any period ending after the Closing Date.
(j)
The Company has not requested, and is not the subject of or bound by any private letter ruling from any Governmental Authority with respect
to any Taxes, nor is any such request outstanding.
(k)
The Company: (i) has not constituted either a “distributing corporation” or a “controlled corporation” (within
the meaning of Section 355(a)(1)(A) of the Code) in a distribution of securities (to any Person or entity that is not a member of the
consolidated group of which the Company is the common parent corporation) qualifying for, or intended to qualify for, Tax-free treatment
under Section 355 of the Code (A) within the two-year period ending on the date hereof or (B) in a distribution which could otherwise
constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the
Code) in conjunction with the transactions contemplated by this Agreement; or (ii) is not and has never been a member of any consolidated,
combined, unitary or affiliated group of corporations for any Tax purposes other than a group of which the Company is or was the common
parent corporation for any taxable period for which the statute of limitations has not expired.
(l)
The Company is not aware of any fact or circumstance that would reasonably be expected to prevent the Merger from qualifying as a “reorganization”
within the meaning of Section 368(a) of the Code.
(m)
Except as otherwise set forth on Schedule 4.14(m), since January 1, 2020, the Company has not revoked or amended any material
Tax election or filed any amended Tax Returns or claim for refund.
4.15
Real Property. Schedule 4.14(a) contains a complete and accurate list of all premises currently leased or subleased or otherwise
used or occupied by the Company for the operation of the business of the Company, and of all current leases, lease guarantees, agreements
and documents related thereto, including all amendments, terminations and modifications thereof or waivers thereto (collectively, the
“Company Real Property Leases”), as well as the current annual rent and term under each Company Real Property
Lease. The Company has provided to the Purchaser a true and complete copy of each of the Company Real Property Leases, and in the case
of any oral Company Real Property Lease, a written summary of the material terms of such Company Real Property Lease. The Company Real
Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect. To the Knowledge
of the Company, no event has occurred which (whether with or without notice, lapse of time or both or the happening or occurrence of
any other event) would constitute a default on the part of the Company or any other party under any of the Company Real Property Leases,
and the Company has not received written notice of any such condition. The Company does not own and has never owned any real property
or any interest in real property (other than the leasehold interests in the Company Real Property Leases).
4.16
Personal Property. Each item of Personal Property which is currently owned, used or leased by the Company with a book value or
fair market value of greater than One Hundred Thousand Dollars ($100,000) is set forth on Schedule 4.16, along with, to the
extent applicable, a list of lease agreements, lease guarantees, security agreements and other agreements related thereto, including
all amendments, terminations and modifications thereof or waivers thereto (“Company Personal Property Leases”).
Except as set forth in Schedule 4.16, all such items of Personal Property are in good operating condition and repair (reasonable
wear and tear excepted consistent with the age of such items), and are suitable for their intended use in the business of the Company.
The operation of the Company’s business as it is now conducted is not dependent upon the right to use the Personal Property of
Persons other than the Company, except for such Personal Property that is owned, leased or licensed by or otherwise contracted to the
Company. The Company has provided to the Purchaser a true and complete copy of each of the Company Personal Property Leases, and in the
case of any oral Company Personal Property Lease, a written summary of the material terms of such Company Personal Property Lease. The
Company Personal Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect.
To the Knowledge of the Company, no event has occurred which (whether with or without notice, lapse of time or both or the happening
or occurrence of any other event) would constitute a default on the part of the Company or any other party under any of the Company Personal
Property Leases, and the Company has not received notice of any such condition.
4.17
Title to and Sufficiency of Assets. The Company has good and marketable title to, or a valid leasehold interest in or right to
use, all of its assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under leasehold interests,
(c) Liens specifically identified on the balance sheet as of the Balance Sheet Date included in the Company Financials and (d) Liens
set forth on Schedule 4.17. The assets (including Intellectual Property rights and contractual rights) of the Company constitute
all of the assets, rights and properties that are used in the operation of the businesses of the Company as it is now conducted or that
are used or held by the Company for use in the operation of the businesses of the Company, and taken together, are adequate and sufficient
for the operation of the businesses of the Company as currently conducted.
4.18
Employee Matters.
(a)
Except as set forth in Schedule 4.18(a), the Company is not a party to any collective bargaining agreement or other Contract
covering any group of employees, labor organization or other representative of any of the employees of the Company, and the Company has
no Knowledge of any activities or proceedings of any labor union or other party to organize or represent such employees. There has not
occurred or, to the Knowledge of the Company, been threatened any strike, slow-down, picketing, work-stoppage, or other similar labor
activity with respect to any such employees. Schedule 4.18(a) sets forth all unresolved labor controversies (including unresolved
grievances and age or other discrimination claims), if any, that are pending or, to the Knowledge of the Company, threatened between
the Company and Persons employed by or providing services as independent contractors to the Company. No current officer or employee of
the Company has provided the Company written or, to the Knowledge of the Company, oral notice of his or her plan to terminate his or
her employment with the Company.
(b)
Except as set forth in Schedule 4.18(b), the Company (i) is and has been in compliance in all material respects with all
applicable Laws respecting employment and employment practices, terms and conditions of employment, health and safety and wages and hours,
and other Laws relating to discrimination, disability, labor relations, hours of work, payment of wages and overtime wages, pay equity,
immigration, workers compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave,
and employee terminations, and has not received written or, to the Knowledge of the Company, oral notice that there is any pending Action
involving unfair labor practices against the Company, (ii) is not liable for any material past due arrears of wages or any material penalty
for failure to comply with any of the foregoing, and (iii) is not liable for any material payment to any Governmental Authority with
respect to unemployment compensation benefits, social security or other benefits or obligations for employees, independent contractors
or consultants (other than routine payments to be made in the ordinary course of business and consistent with past practice). There are
no Actions pending or, to the Knowledge of the Company, threatened against the Company brought by or on behalf of any applicant for employment,
any current or former employee, any Person alleging to be a current or former employee, or any Governmental Authority, relating to any
such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging
any other discriminatory, wrongful or tortious conduct in connection with the employment relationship.
(c)
Schedule 4.18(c) hereto sets forth a complete and accurate list as of the date hereof of all employees of the Company showing
for each as of such date (i) the employee’s name, job title or description, employer, location, salary level (including any bonus,
commission, deferred compensation or other remuneration payable (other than any such arrangements under which payments are at the discretion
of the Company)), (ii) any bonus, commission or other remuneration other than salary paid during the fiscal year ended December 31, 2022,
and (iii) any wages, salary, bonus, commission or other compensation due and owing to each employee during or for the fiscal year ended
December 31, 2022. Except as set forth on Schedule 4.18(c), (A) no employee is a party to a written employment Contract with
the Company and each is employed “at will”, and (B) the Company has paid in full to all its employees all wages, salaries,
commission, bonuses and other compensation due to its employees, including overtime compensation, and the Company has no obligation or
Liability (whether or not contingent) with respect to severance payments to any such employees under the terms of any written or, to
the Company’s Knowledge, oral agreement, or commitment or any applicable Law, custom, trade or practice. Except as set forth in
Schedule 4.18(c), the Company employee has entered into the Company’s standard form of employee non-disclosure, inventions
and restrictive covenants agreement with the Company (whether pursuant to a separate agreement or incorporated as part of such employee’s
overall employment agreement), a copy of which has been made available to the Purchaser by the Company.
(d)
Schedule 4.18(d) contains a list of all independent contractors (including consultants) currently engaged by the Company,
along with the position, the entity engaging such Person, date of retention and rate of remuneration, most recent increase (or decrease)
in remuneration and amount thereof, for each such Person. Except as set forth on Schedule 4.18(d), all of such independent
contractors are a party to a written Contract with the Company. Except as set forth on Schedule 4.18(d), each such independent
contractor has entered into customary covenants regarding confidentiality, non-competition and assignment of inventions and copyrights
in such Person’s agreement with the Company, a copy of which has been provided to the Purchaser by the Company. For the purposes
of applicable Law, including the Code, all independent contractors who are currently, or within the last six (6) years have been, engaged
by the Company are bona fide independent contractors and not employees of the Company. Each independent contractor is terminable on fewer
than thirty (30) days’ notice, without any obligation of the Company to pay severance or a termination fee.
4.19
Benefit Plans.
(a)
Set forth on Schedule 4.19(a) is a true and complete list of each material Benefit Plan of the Company (each, a “Company
Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions
have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or
otherwise properly footnoted in accordance with GAAP on the Company Financials. The Company is not nor has it in the past six (6) years
been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does the Company has
any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement,
either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance
with the Company Benefit Plan in any material respect.
(b)
Each Company Benefit Plan is and has been operated and administered at all times in compliance with all applicable Laws in all material
respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning
of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received
a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) its related trust has been determined
to be exempt from taxation under Section 501(a) of the Code or the Company has requested an initial favorable IRS determination of qualification
and/or exemption within the period permitted by applicable Law. To the Company’s Knowledge, no fact exists which would reasonably
be expected to adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c)
With respect to each Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary
thereof) of the Company, the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) all Company Benefit
Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto);
(ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and
annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3)
most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most
recent actuarial valuation; and (viii) all material communications with any Governmental Authority.
(d)
With respect to each Company Benefit Plan: (i) such Company Benefit Plan has been administered and enforced in all material respects
in accordance with its terms, the Code and ERISA; (ii) no breach of fiduciary duty has occurred; (iii) no Action is pending, or to the
Company’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of administration); (iv)
no prohibited transaction, as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected
pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made
in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e)
No Company Benefit Plan is a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan”
(as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise
subject to Title IV of ERISA or Section 412 of the Code, and the Company has no Liability or otherwise could reasonably be expected to
have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such
Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to the Company immediately after
the Closing Date. The Company does not currently maintain nor has in the past six (6) years maintained, nor is required currently and
has in the past six (6) years never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement
or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f)
There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that
by operation of Sections 280G of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company
will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment
to such person.
(g)
With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such
plan provides medical or death benefits with respect to current or former employees (or a dependent or beneficiary thereof) of the Company
beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees, dependents or beneficiaries);
and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied in all material respects
with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h)
The Company and each Company Benefit Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (each, a
“Health Plan”) is and has been for the past six (6) years in compliance, in all material respects, with the
Patient Protection and Affordable Care Act of 2010, and, to the Knowledge of the Company, no event has occurred, and no condition or
circumstance exists, that would subject the Company or any Health Plan to any material Liability for penalties or excise Taxes under
Sections 4980D or 4980H of the Code.
(i)
The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual
to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase
the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation
that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section
280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under
Section 502(i) or (l) of ERISA.
(j)
Except to the extent required by Section 4980B of the Code or similar state Law, the Company provides no health or welfare benefits to
any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement
or other termination of employment or service.
(k)
Each Company Benefit Plan subject to Section 409A of the Code has been operated, administered and is in documentary compliance with the
applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. There is
no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, consultant or director for penalty
taxes paid pursuant to Section 409A of the Code.
4.20
Environmental Matters. Except as set forth in Schedule 4.20:
(a)
The Company is and has been in compliance in all material respects with all applicable Environmental Laws, including obtaining, maintaining
in good standing, and complying in all material respects with all Permits required for its business and operations by Environmental Laws
(“Environmental Permits”), no Action is pending or, to the Company’s Knowledge, threatened in writing
to revoke, modify (in a manner that would prohibit the Company from conducting its business or operations), or terminate any such Environmental
Permit, and, to the Company’s Knowledge, no facts, circumstances, or conditions currently exist that could adversely affect such
continued compliance in any material respect with applicable Environmental Laws and Environmental Permits.
(b)
To the Company’s Knowledge, the Company is not the subject of any outstanding Order or Contract with any Governmental Authority
or other Person in respect of any (i) Environmental Laws, (ii) Remedial Action, or (iii) Release or threatened Release of a Hazardous
Material. The Company has not assumed, contractually or by operation of Law, any Liabilities or obligations under any Environmental Laws.
(c)
No Action has been made or is pending, or to the Company’s Knowledge, threatened against the Company or any assets of the Company
alleging either or both that the Company may be in material violation of any Environmental Law or Environmental Permit or may have any
material Liability under any Environmental Law.
(d)
The Company has not manufactured, treated, stored, disposed of, arranged for or permitted the disposal of, generated, handled or Released
any Hazardous Material, or owned or operated any property or facility, in a manner that has given or would reasonably be expected to
give rise to any material Environmental Liabilities under applicable Environmental Laws. To the Company’s Knowledge, no fact, circumstance,
or condition exists in respect of the Company or any property currently or formerly owned, operated, or leased by the Company or any
property to which the Company arranged for the disposal or treatment of Hazardous Materials that could reasonably be expected to result
in the Company incurring any material Environmental Liabilities.
(e)
There is no pending or, to the Company’s Knowledge, to the Company’s Knowledge there is no pending or threatened investigation
by a Governmental Authority of the business, operations, or currently owned, operated, or leased property of the Company or, to the Company’s
Knowledge, previously owned, operated, or leased property of the Company that could lead to the imposition of any Liens under any Environmental
Law or that could reasonably be expected to result in the Company incurring material Environmental Liabilities.
4.21
Transactions with Related Persons. Except as set forth on Schedule 4.21, no Company Affiliates, nor any officer, director,
manager, employee, trustee or beneficiary of the Company, nor any immediate family member of any of the foregoing (whether directly or
indirectly through an Affiliate of such Person) (each of the foregoing, a “Related Person”) is not presently,
nor in the past three (3) years, has been, a party to any transaction with the Company, including any Contract or other arrangement (a)
providing for the furnishing of services by (other than as officers, directors or employees of the Company), (b) providing for the rental
of real property or Personal Property from or (c) otherwise requiring payments to (other than for services or expenses as directors,
officers or employees of the Company in the ordinary course of business consistent with past practice) any Related Person or any Person
in which any Related Person has an interest as an owner, officer, manager, director, trustee or partner or in which any Related Person
has any direct or indirect interest (other than the ownership of securities representing no more than two percent (2%) of the outstanding
voting power or economic interest of a publicly traded company). Except as set forth on Schedule 4.21, the Company has no outstanding
Contract or other arrangement or commitment with any Related Person, and no Related Person owns any real property or Personal Property,
or right, tangible or intangible (including Intellectual Property) which is used in the business of the Company. The assets of the Company
do not include any receivable or other obligation from a Related Person, and the liabilities of the Company do not include any payable
or other obligation or commitment to any Related Person.
4.22
Insurance.
(a)
Schedule 4.22(a) lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and
type of policy) held by the Company relating to the Company or its business, properties, assets, directors, officers and employees, copies
of which have been provided to the Purchaser. All premiums due and payable under all such insurance policies have been timely paid and
the Company are otherwise in material compliance with the terms of such insurance policies. Each such insurance policy (i) is legal,
valid, binding, enforceable and in full force and effect and (ii) will continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the Closing. The Company has no self-insurance or co-insurance programs. In the past five
(5) years, the Company has not received any notice from, or on behalf of, any insurance carrier relating to or involving any adverse
change or any material change other than in the ordinary course of business, in the conditions of insurance, any refusal to issue an
insurance policy, other than in the ordinary course of business, or non-renewal of a policy.
(b)
The Company has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim,
except where such failure to report such a claim would not be reasonably likely to be material to the Company. To the Knowledge of the
Company, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice
or lapse of time) give rise to or serve as a basis for the denial of any such insurance claim. The Company has not made any claim against
an insurance policy as to which the insurer is denying coverage.
4.23
Books and Records. All of the financial books and records of the Company are complete and accurate in all material respects and
have been maintained in the ordinary course consistent with past practice and in accordance with applicable Laws.
4.24
Top Customers and Suppliers. Schedule 4.24 lists, by dollar volume received or paid, as applicable, for the twelve (12)
months ended on December 31, 2022, the ten (10) largest customers of the Company (the “Top Customers”) and
the ten largest suppliers of goods or services to the Company (the “Top Suppliers”), along with the amounts
of such dollar volumes. The relationships of the Company with such suppliers and customers are good commercial working relationships
and (i) no Top Supplier or Top Customer within the last twelve (12) months has cancelled or otherwise terminated, or, to the Company’s
Knowledge, intends to cancel or otherwise terminate, any material relationships of such Person with the Company, (ii) no Top Supplier
or Top Customer has during the last twelve (12) months decreased materially or, to the Company’s Knowledge, threatened to stop,
decrease or limit materially, or intends to modify materially its material relationships with the Company or intends to stop, decrease
or limit materially its products or services to the Company or its usage or purchase of the products or services of the Company, (iii)
to the Company’s Knowledge, no Top Supplier or Top Customer intends to refuse to pay any amount due to the Company or seek to exercise
any remedy against the Company, (iv) the Company has not within the past two (2) years been engaged in any material dispute with any
Top Supplier or Top Customer, and (v) to the Company’s Knowledge, the consummation of the transactions contemplated in this Agreement
and the Ancillary Documents will not adversely affect the relationship of the Company with any Top Supplier or Top Customer.
4.25
Certain Business Practices.
(a)
The Company, including any of its Representatives acting on its behalf, has not (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices
Act of 1977 or any other local or foreign anti-corruption or bribery Law or (iii) made any other unlawful payment. The Company, including
any of its Representatives acting on its behalf has not, directly or indirectly, given or agreed to give any unlawful gift or similar
benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help
or hinder the Company or assist the Company in connection with any actual or proposed transaction.
(b)
The operations of the Company are and have been conducted at all times in compliance with money laundering statutes in all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any Governmental Authority, and no Action involving the Company with respect to any of the foregoing is pending or, to
the Knowledge of the Company, threatened.
(c)
The Company, including any of its directors or officers, or, to the Knowledge of the Company, any other Representative acting on behalf
of the Company, is not currently identified on the specially designated nationals or other blocked person list or otherwise currently
subject to any U.S. sanctions administered by OFAC, and the Company has not in the last five (5) fiscal years, directly or indirectly,
used any funds, or loaned, contributed or otherwise made available such funds to any joint venture partner or other Person, in connection
with any sales or operations in Cuba, Iran, Syria, Sudan, Myanmar or any other country sanctioned by OFAC or for the purpose of financing
the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by OFAC.
4.26
[RESERVED].
4.27
Investment Company Act. The Company is not an “investment company” or a Person directly or indirectly “controlled”
by or acting on behalf of an “investment company”, or required to register as an “investment company”, in each
case within the meaning of the Investment Company Act of 1940, as amended.
4.28
Finders and Brokers. Except as set forth in Schedule 4.28, the Company has not incurred and will not incur any Liability
for any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby.
4.29
Independent Investigation. The Company has conducted its own independent investigation, review and analysis of the business, results
of operations, prospects, condition (financial or otherwise) or assets of the Purchaser, and acknowledges that it has been provided adequate
access to the personnel, properties, assets, premises, books and records, and other documents and data of the Purchaser for such purpose.
The Company acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions
contemplated hereby, it has relied solely upon its own investigation and the express representations and warranties of the Purchaser
set forth in Agreement (including the related portions of the Purchaser Disclosure Schedules) and in any certificate delivered to the
Company pursuant hereto; and (b) neither the Purchaser nor any of its Representatives have made any representation or warranty as to
the Purchaser or this Agreement, except as expressly set forth in this Agreement (including the related portions of the Purchaser Disclosure
Schedules) or in any certificate delivered to the Company pursuant hereto.
4.30
Information Supplied. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation
by reference: (a) in any current report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing
made with any Governmental Authority or stock exchange with respect to the transactions contemplated by this Agreement or any Ancillary
Documents; (b) in the Registration Statement; or (c) in the mailings or other distributions to the Purchaser’s stockholders and/or
prospective investors with respect to the consummation of the transactions contemplated by this Agreement or in any amendment to any
of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, contain any
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not misleading. None of the information supplied or to be
supplied by the Company expressly for inclusion or incorporation by reference in any of the Signing Press Release, the Signing Filing,
the Closing Press Release and the Closing Filing will, when filed or distributed, as applicable, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty
or covenant with respect to any information supplied by or on behalf of the Purchaser or its Affiliates.
4.31
No Other Representations. Except for the representations and warranties expressly made by the Company in this Article IV (as
modified by the Company Disclosure Schedules) or as expressly set forth in an Ancillary Document, neither the Company nor any other Person
on its behalf makes any express or implied representation or warranty with respect to the Company or its business, operations, assets
or Liabilities, or the transactions contemplated by this Agreement or any of the other Ancillary Documents, and the Company hereby expressly
disclaims any other representations or warranties, whether implied or made by the Company or any of its Representatives. Except for the
representations and warranties expressly made by the Company in this Article IV (as modified by the Company Disclosure Schedules)
or in an Ancillary Document, the Company hereby expressly disclaims all liability and responsibility for any representation, warranty,
projection, forecast, statement or information made, communicated or furnished (orally or in writing) to the Purchaser, Merger Sub or
any of their respective Representatives (including any opinion, information, projection or advice that may have been or may be provided
to the Purchaser, Merger Sub or any of their respective Representatives by any Representative of the Company), including any representations
or warranties regarding the probable success or profitability of the businesses of the Company.
Article
V
COVENANTS
5.1
Access and Information.
(a)
During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance
with Section 7.1 or the Closing (the “Interim Period”), subject to Section 5.15, the Company
shall give, and shall cause its Representatives to give, the Purchaser and its Representatives, at reasonable times during normal business
hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties,
Contracts, agreements, commitments, books and records, financial and operating data and other information (including Tax Returns, internal
working papers, client files, client Contracts and director service agreements), of or pertaining to the Company, as the Purchaser or
its Representatives may reasonably request regarding the Company and its businesses, assets, Liabilities, financial condition, prospects,
operations, management, employees and other aspects (including unaudited quarterly financial statements, including a quarterly balance
sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority
pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent
or any other conditions required by such accountants, if any)) and cause each of the Company’s Representatives to reasonably cooperate
with the Purchaser and its Representatives in their investigation; provided, however, that the Purchaser and its Representatives
shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Company. Notwithstanding
the foregoing, the Company may restrict or otherwise prohibit access to any documents or information to the extent that the Company’s
outside legal counsel advises it that (a) applicable Law requires the Company to restrict or otherwise prohibit access to such documents
or information; (b) access to such documents would be in violation of the HSR Act, Sherman Act, or any applicable non-U.S. antitrust
or competition laws; (c) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege,
work product doctrine or other similar privilege applicable to such documents or information; or (d) such documents or information are
reasonably pertinent to any adverse legal proceeding between the Company and its Affiliates, on the one hand, and Purchaser and its Affiliates,
on the other hand. Nothing in this Section 5.1 will be construed to require the Company or any of its Representatives to prepare
any reports, statements, analyses.
(b)
During the Interim Period, subject to Section 5.15, the Purchaser shall give, and shall cause its Representatives to give, the
Company and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable
access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial
and operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director
service agreements), of or pertaining to the Purchaser or its Subsidiaries, as the Company or its Representatives may reasonably request
regarding the Purchaser, its Subsidiaries and their respective businesses, assets, Liabilities, financial condition, prospects, operations,
management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance
sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority
pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent
or any other conditions required by such accountants, if any)) and cause each of the Purchaser’s Representatives to reasonably
cooperate with the Company and its Representatives in their investigation; provided, however, that the Company and its Representatives
shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Purchaser
or any of its Subsidiaries. Notwithstanding the foregoing, the Purchaser may restrict or otherwise prohibit access to any documents or
information to the extent that the Purchaser’s outside legal counsel advises it that (a) applicable Law requires the Purchaser
to restrict or otherwise prohibit access to such documents or information; (b) access to such documents would be in violation of the
HSR Act, Sherman Act, or any applicable non-U.S. antitrust or competition laws; (c) access to such documents or information would give
rise to a material risk of waiving any attorney-client privilege, work product doctrine or other similar privilege applicable to such
documents or information; or (d) such documents or information are reasonably pertinent to any adverse legal proceeding between the Company
and its Affiliates, on the one hand, and Purchaser and its Affiliates, on the other hand. Nothing in this Section 5.1 will
be construed to require the Purchaser, any of its Subsidiaries or any of their respective Representatives to prepare any reports, statements,
analyses, appraisals, opinions or other information not otherwise prepared in the ordinary course of business.
5.2
Conduct of Business of the Company.
(a)
Unless the Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during
the Interim Period, except as expressly contemplated by this Agreement, or the Ancillary Documents, as required by applicable Law or
as set forth on Schedule 5.2, the Company shall (i) conduct its business, in all material respects, in the ordinary course
of business consistent with past practice, (ii) comply with all Laws applicable to the Company and its business, assets and employees,
and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business
organization, to keep available the services of its managers, directors, officers, employees and consultants, and to preserve the possession,
control and condition of its material assets, all as consistent with past practice.
(b)
Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this Agreement, or the Ancillary
Documents, as required by applicable Law or as set forth on Schedule 5.2, during the Interim Period, without the prior written
consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(i)
amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law;
(ii)
authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity
securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities,
or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities
of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii)
split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof
or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of
its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv)
incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $200,000
individually or $500,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement of expenses
to employees in the ordinary course of business), or guarantee or endorse any Indebtedness, Liability or obligation of any Person in
excess of $200,000 individually or $500,000 in the aggregate;
(v)
increase the wages, salaries or compensation of its employees other than in the ordinary course of business, consistent with past practice,
in the aggregate by more than ten percent (10%), or make or commit to make any bonus payment (whether in cash, property or securities)
to any employee, or materially increase other benefits of employees generally, or enter into, establish, materially amend or terminate
any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in each case other
than as required by applicable Law, pursuant to the terms of any Company Benefit Plans or in the ordinary course of business consistent
with past practice;
(vi)
make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation,
audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting
or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii)
transfer or license to any Person or otherwise materially amend or modify, permit to lapse or fail to preserve any material Company Registered
IP, Company Licensed IP or other material Company IP (excluding non-exclusive licenses of Company IP to the Company’s customers
in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality
agreement any Trade Secrets;
(viii)
terminate, or waive or assign any material right under, any Company Material Contract or enter into any Contract that would be a Company
Material Contract, in any case outside of the ordinary course of business consistent with past practice;
(ix)
fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x)
establish any Subsidiary or enter into any new line of business;
(xi)
fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance
coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which
is currently in effect;
(xii)
revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required
to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii)
waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation
relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises
that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by,
the Company or its Affiliates) not in excess of $200,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any
Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv)
close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv)
acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any
corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets
outside the ordinary course of business consistent with past practice;
(xvi)
make capital expenditures in excess of $200,000 (individually for any project (or set of related projects) or $500,000 in the aggregate);
(xvii)
adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii)
voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $200,000 individually
or $500,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix)
sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise
dispose of any material portion of its properties, assets or rights;
(xx)
enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi)
take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental
Authority to be obtained in connection with this Agreement;
(xxii)
accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the
ordinary course of business consistent with past practice;
(xxiii)
enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person
(other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent
with past practice); or
(xxiv)
authorize or agree to do any of the foregoing actions.
(c)
The Company shall use its commercially reasonable efforts, during the Interim Period, to take such actions as set forth on Schedule
5.2(c).
5.3
Conduct of Business of the Purchaser.
(a)
Unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during
the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents, as required by applicable Law or as
set forth on Schedule 5.3, the Purchaser shall, and shall cause its Subsidiaries to, (i) conduct their respective businesses,
in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to the
Purchaser and its Subsidiaries and their respective businesses, assets and employees, and (iii) take all commercially reasonable measures
necessary or appropriate to preserve intact, in all material respects, their respective business organizations, to keep available the
services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition
of their respective material assets, all as consistent with past practice. Notwithstanding anything to the contrary in this Section
5.3, nothing in this Agreement shall prohibit or restrict Purchaser from extending, in accordance with Purchaser’s Organizational
Documents and the IPO Prospectus, the deadline by which it must complete its Business Combination (an “Extension”),
and no consent of any other Party shall be required in connection therewith.
(b)
Without limiting the generality of Section 5.3(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents
or as set forth on Schedule 5.3, during the Interim Period, without the prior written consent of the Company (such consent
not to be unreasonably withheld, conditioned or delayed), the Purchaser shall not, and shall cause its Subsidiaries to not:
(i)
amend, waive or otherwise change, in any respect, its Organizational Documents except as required by applicable Law;
(ii)
authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity
securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities,
or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests
of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii)
split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof
or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of
its shares or other equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its
securities;
(iv)
incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $200,000
individually or $500,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness,
Liability or obligation of any Person (provided, that this Section 5.3(b)(iv) shall not prevent the Purchaser from borrowing
funds necessary to finance its ordinary course administrative costs and expenses and Expenses incurred in connection with the consummation
of the Merger and the other transactions contemplated by this Agreement (including the costs and expenses necessary for an Extension
(such expenses, “Extension Expenses”), up to aggregate additional Indebtedness during the Interim Period of
$1,000,000);
(v)
make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation,
audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting
or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vi)
amend, waive or otherwise change the Trust Agreement in any manner adverse to the Purchaser;
(vii)
terminate, waive or assign any material right under any Purchaser Material Contract;
(viii)
fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(ix)
establish any Subsidiary or enter into any new line of business;
(x)
fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance
coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which
is currently in effect;
(xi)
revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required
to comply with GAAP and after consulting the Purchaser’s outside auditors;
(xii)
waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation
relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises
that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by,
the Purchaser or its Subsidiary) not in excess of $200,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy
any Actions, Liabilities or obligations, unless such amount has been reserved in the Purchaser Financials;
(xiii)
acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any
corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets
outside the ordinary course of business;
(xiv)
make capital expenditures in excess of $200,000 individually for any project (or set of related projects) or $500,000 in the aggregate
(excluding for the avoidance of doubt, incurring any Expenses);
(xv)
adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization
(other than with respect to the Merger);
(xvi)
voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $200,000 individually
or $500,000 in the aggregate (excluding the incurrence of any Expenses) other than pursuant to the terms of a Contract in existence as
of the date of this Agreement or entered into in the ordinary course of business or in accordance with the terms of this Section 5.3
during the Interim Period;
(xvii)
sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise
dispose of any material portion of its properties, assets or rights;
(xviii)
enter into any agreement, understanding or arrangement with respect to the voting of Purchaser Securities;
(xix)
take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental
Authority to be obtained in connection with this Agreement; or
(xx)
authorize or agree to do any of the foregoing actions.
5.4
Annual and Interim Financial Statements.
(a)
During the Interim Period, within thirty (30) calendar days following the end of each calendar month, each three-month quarterly period
and each fiscal year, the Company shall deliver to the Purchaser an unaudited income statement and an unaudited balance sheet of the
Company for the period from the Balance Sheet Date through the end of such calendar month, quarterly period or fiscal year and the applicable
comparative period in the preceding fiscal year, in each case accompanied by a certificate of the Chief Financial Officer of the Company
to the effect that all such financial statements fairly present the financial position and results of operations of the Company as of
the date or for the periods indicated, in accordance with GAAP, subject to year-end audit adjustments and excluding footnotes.
(b)
As promptly as practicable after the date of this Agreement (but in no event later than 30 days after the date of this Agreement), the
Company shall use its commercially reasonable efforts to deliver to the Purchaser, audited financial statements for the fiscal years
ended December 31, 2022, and December 31, 2021, which financial statements shall have been audited in accordance with PCAOB auditing
standards by a PCAOB qualified auditor. Such audited financial statements shall be accompanied by a certificate of the Chief Financial
Officer of the Company to the effect that all such financial statements fairly present the financial position and results of operations
of the Company as of the date or for the periods indicated, in accordance with GAAP.
5.5
Purchaser Public Filings. During the Interim Period, the Purchaser will keep current and timely file all of its public filings
with the SEC and otherwise comply in all material respects with applicable securities Laws and shall use its commercially reasonable
efforts prior to the Closing to maintain the listing of the Purchaser Public Units, the shares of Purchaser Class A Common Stock and
the Purchaser Rights on Nasdaq; provided, that the Parties acknowledge and agree that from and after the Closing, the Parties
intend to list on Nasdaq only the Purchaser Common Stock.
5.6
No Solicitation.
(a)
For purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any
indication of interest in making an offer or proposal, from any Person or group at any time relating to an Alternative Transaction, and
(ii) an “Alternative Transaction” means (A) with respect to the Company and its Affiliates, a transaction (other
than the transactions contemplated by this Agreement) concerning the sale of (x) all or any material part of the business or assets of
the Company (other than in the ordinary course of business consistent with past practice) or (y) any of the shares or other equity interests
or profits of the Company, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets,
merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise and (B) with respect
to the Purchaser and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning a Business
Combination involving Purchaser.
(b)
During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources
in furtherance of the transactions contemplated hereby, each Party shall not, and shall cause its Representatives to not, without the
prior written consent of the Company and the Purchaser, directly or indirectly, (i) solicit, assist, initiate or facilitate the making,
submission or announcement of, or intentionally encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding
such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees
to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to
an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that
could reasonably be expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve,
endorse or recommend, any Acquisition Proposal, (v) negotiate or enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement related to any Acquisition Proposal, or (vi) release any third Person from, or waive any provision
of, any confidentiality agreement to which such Party is a party.
(c)
Each Party shall notify the others as promptly as practicable (and in any event within 48 hours) in writing of the receipt by such Party
or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions
or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information
or requests for discussions or negotiations that could be expected to result in an Acquisition Proposal, and (ii) any request for non-public
information relating to such Party or its Affiliates in connection with any Acquisition Proposal, specifying in each case, the material
terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if oral) and the identity of the party
making such inquiry, proposal, offer or request for information. Each Party shall keep the others promptly informed of the status of
any such inquiries, proposals, offers or requests for information. During the Interim Period, each Party shall, and shall cause its Representatives
to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition
Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions or negotiations.
5.7
No Trading. The Company acknowledges and agrees that it is aware, and that the Company’s Affiliates are aware (and each
of their respective Representatives is aware or, upon receipt of any material nonpublic information of the Purchaser, will be advised)
of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC and Nasdaq promulgated thereunder
or otherwise (the “Federal Securities Laws”) and other applicable foreign and domestic Laws on a Person possessing
material nonpublic information about a publicly traded company. The Company hereby agrees that, while it is in possession of such material
nonpublic information, it shall not purchase or sell any securities of the Purchaser (other than to engage in the Merger in accordance
with Article I), communicate such information to any third party, take any other action with respect to the Purchaser in violation
of such Laws, or cause or encourage any third party to do any of the foregoing.
5.8
Notification of Certain Matters. During the Interim Period, each Party shall give prompt notice to the other Parties if such Party
or its Affiliates: (a) fails to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or
its Affiliates hereunder in any material respect; (b) receives any notice or other communication in writing from any third party (including
any Governmental Authority) alleging (i) that the Consent of such third party is or may be required in connection with the transactions
contemplated by this Agreement or (ii) any non-compliance with any Law by such Party or its Affiliates; (c) receives any notice or other
communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; (d) discovers any fact
or circumstance that, or becomes aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would
reasonably be expected to cause or result in any of the conditions to the Closing set forth in Article VI not being satisfied or the
satisfaction of those conditions being materially delayed; or (e) becomes aware of the commencement or threat, in writing, of any Action
against such Party or any of its Affiliates, or any of their respective properties or assets, or, to the Knowledge of such Party, any
officer, director, partner, member or manager, in his, her or its capacity as such, of such Party or of its Affiliates with respect to
the consummation of the transactions contemplated by this Agreement. No such notice shall constitute an acknowledgement or admission
by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining
whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
5.9
Efforts.
(a)
Subject to the terms and conditions of this Agreement, each Party shall use its commercially reasonable efforts, and shall cooperate
fully with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary,
proper or advisable under applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including the
receipt of all applicable Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of Governmental
Authorities applicable to the transactions contemplated by this Agreement.
(b)
In furtherance and not in limitation of Section 5.9(a), to the extent required under any Laws that are designed to prohibit, restrict
or regulate actions having the purpose or effect of monopolization or restraint of trade (“Antitrust Laws”),
each Party hereto agrees to make any required filing or application under Antitrust Laws, as applicable, with each of the Purchaser and
the Company bearing fifty percent (50%) of the costs and expenses thereof. with respect to the transactions contemplated hereby as promptly
as practicable, to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably
requested pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to cause the expiration
or termination of the applicable waiting periods under Antitrust Laws as soon as practicable, including by requesting early termination
of the waiting period provided for under the Antitrust Laws. Each Party shall, in connection with its efforts to obtain all requisite
approvals and authorizations for the transactions contemplated by this Agreement under any Antitrust Law, use its commercially reasonable
efforts to: (i) cooperate in all respects with each other Party or its Affiliates in connection with any filing or submission and in
connection with any investigation or other inquiry, including any proceeding initiated by a private Person; (ii) keep the other Parties
reasonably informed of any communication received by such Party or its Representatives from, or given by such Party or its Representatives
to, any Governmental Authority and of any communication received or given in connection with any proceeding by a private Person, in each
case regarding any of the transactions contemplated by this Agreement; (iii) permit a Representative of the other Parties and their respective
outside counsel to review any communication given by it to, and consult with each other in advance of any meeting or conference with,
any Governmental Authority or, in connection with any proceeding by a private Person, with any other Person, and to the extent permitted
by such Governmental Authority or other Person, give a Representative or Representatives of the other Parties the opportunity to attend
and participate in such meetings and conferences; (iv) in the event a Party’s Representative is prohibited from participating in
or attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably apprised with respect thereto;
and (v) use commercially reasonable efforts to cooperate in the filing of any memoranda, white papers, filings, correspondence or other
written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument,
and/or responding to requests or objections made by any Governmental Authority.
(c)
As soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use
(and shall cause their respective Affiliates to use) their respective commercially reasonable efforts to prepare and file with Governmental
Authorities requests for approval of the transactions contemplated by this Agreement and shall use all commercially reasonable efforts
to have such Governmental Authorities approve the transactions contemplated by this Agreement. Each Party shall give prompt written notice
to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection
with the transactions contemplated by this Agreement, and shall promptly furnish the other Parties with a copy of such Governmental Authority
notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the transactions
contemplated hereby, whether prior to the Closing or after the Closing, each Party shall arrange for Representatives of such Party to
be present for such hearing or meeting. If any objections are asserted with respect to the transactions contemplated by this Agreement
under any applicable Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or
any private Person challenging any of the transactions contemplated by this Agreement or any Ancillary Document as violative of any applicable
Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby
or thereby, the Parties shall use their commercially reasonable efforts to resolve any such objections or Actions so as to timely permit
consummation of the transactions contemplated by this Agreement and the Ancillary Documents, including in order to resolve such objections
or Actions which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation
of the transactions contemplated hereby or thereby. In the event any Action is instituted (or threatened to be instituted) by a Governmental
Authority or private Person challenging the transactions contemplated by this Agreement, or any Ancillary Document, the Parties shall,
and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective commercially reasonable
efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary
or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement
or the Ancillary Documents.
(d)
Prior to the Closing, each Party shall use its commercially reasonable efforts to obtain any Consents of Governmental Authorities or
other third Persons as may be necessary for the consummation by such Party or its Affiliates of the transactions contemplated by this
Agreement or required as a result of the execution or performance of, or consummation of the transactions contemplated by, this Agreement
by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
5.10
Tax Matters. Each of the Parties shall use its reasonable best efforts to cause the Merger to qualify as a “reorganization”
within the meaning of Section 368(a) of the Code. None of the Parties shall (and each of the Parties shall cause their respective Subsidiaries
not to) take any action, or fail to take any action, that could reasonably be expected to cause the Merger to fail to qualify as a “reorganization”
within the meaning of Section 368(a) of the Code. The Parties intend to report and, except to the extent otherwise required by Law, shall
report, for federal income tax purposes, the Merger as a “reorganization” within the meaning of Section 368(a) of the Code.
5.11
Further Assurances. The Parties hereto shall further cooperate with each other and use their respective commercially reasonable
efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on their part
under this Agreement and applicable Laws to consummate the transactions contemplated by this Agreement as soon as reasonably practicable,
including preparing and filing as soon as practicable all documentation to effect all necessary notices, reports and other filings.
5.12
The Registration Statement.
(a)
As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the Company, and file
with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained
therein, the “Registration Statement”) in connection with the registration under the Securities Act of the
Purchaser Class A Common Stock to be issued under this Agreement as the Merger Consideration, which Registration Statement will also
contain a proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser
stockholders for the matters to be acted upon at the Purchaser Special Meeting and providing the Public Stockholders an opportunity in
accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their shares of Purchaser Class A Common
Stock redeemed (the “Redemption”) in conjunction with the stockholder vote on the Purchaser Stockholder Approval
Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote,
at a special meeting of Purchaser stockholders to be called and held for such purpose (the “Purchaser Special Meeting”),
in favor of resolutions approving (i) the adoption and approval of this Agreement and the transactions contemplated hereby or referred
to herein, including the Merger (and to the extent required, the issuance of any shares in connection with a PIPE Investment), by the
holders of shares of Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the DCGL and the rules
and regulations of the SEC and Nasdaq, (ii) adoption and approval of the Amended and Restated Certificate of Incorporation in form and
substance reasonably acceptable to the Company and the Purchaser, including the change of the name of the Purchaser; provided, that if
the Amended Company Charter and the Class B Share Exchange are not agreed to by the Company Special Committee or not approved by the
High Vote Company Stockholder Approval, the Amended Purchaser Charter will not include any provisions regarding the Purchaser Class B
Common Stock and will only provide for a single class of common stock, (iii) adoption and approval of a new equity incentive plan in
form and substance reasonably acceptable to the Purchaser and the Company (the “Incentive Plan”), and which
will provide for awards for a number of shares of Purchaser Common Stock (including for the Assumed Options) equal to ten percent (10%)
of (x) the aggregate number of shares of Purchaser Common Stock issued and outstanding immediately after the Closing (giving effect to
the Redemption), plus (y) the number of Earnout Shares potentially issuable pursuant to the milestones set forth in Section 1.13
of this Agreement, which Incentive Plan shall have an annual “evergreen” increase as of January 1 of each calendar year,
beginning with January 1, 2024 and continuing until (and including January 1, 2033, with such annual increase not to exceed two (2%)
of the aggregate number of shares of Purchaser Common Stock issued and outstanding as of the end of the day immediate prior to such increase,
(iv) the appointment of the members of the Post-Closing Purchaser Board in accordance with Section 5.17 hereof, (v) such other
matters as the Company and Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger
and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (v), collectively,
the “Purchaser Stockholder Approval Matters”), and (vi) the adjournment of the Purchaser Special Meeting, if
necessary or desirable in the reasonable determination of Purchaser. If on the date for which the Purchaser Special Meeting is scheduled,
Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval,
whether or not a quorum is present, Purchaser may make one or more successive postponements or adjournments of the Purchaser Special
Meeting. In connection with the Registration Statement, the Purchaser will file with the SEC financial and other information about the
transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation and registration statement
rules set forth in the Purchaser’s Organizational Documents, the DGCL and the rules and regulations of the SEC and Nasdaq. The
Purchaser shall cooperate and provide the Company (and its counsel) with a reasonable opportunity to review and comment on the Registration
Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Company shall provide the Purchaser with
such information concerning the Company and their stockholders, officers, directors, employees, assets, Liabilities, condition (financial
or otherwise), business and operations that may be required or appropriate for inclusion in the Registration Statement, or in any amendments
or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which
they were made, not materially misleading.
(b)
The Purchaser shall take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the
Exchange Act and other applicable Laws in connection with the Registration Statement, the Purchaser Special Meeting and the Redemption.
Each of Purchaser and the Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees,
upon reasonable advance notice, available to the Company, Purchaser and, after the Closing, the Purchaser Representative, and their respective
Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement,
including the Registration Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any
information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information
is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. Purchaser shall
amend or supplement the Registration Statement and cause the Registration Statement, as so amended or supplemented, to be filed with
the SEC and to be disseminated to Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to
the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c)
Purchaser, with the assistance of the other Parties, shall promptly respond to any SEC comments on the Registration Statement and shall
otherwise use its commercially reasonable efforts to cause the Registration Statement to “clear” comments from the SEC and
become effective. Purchaser shall provide the Company with copies of any written comments, and shall inform the Company of any material
oral comments, that Purchaser or its Representatives receive from the SEC or its staff with respect to the Registration Statement, the
Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Company a reasonable opportunity
under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d)
As soon as practicable following the Registration Statement “clearing” comments from the SEC and becoming effective, the
Purchaser shall distribute the Registration Statement to the Purchaser’s stockholders, and, pursuant thereto, shall duly call,
give notice of, convene and hold the Purchaser Special Meeting in accordance with the DGCL.
(e)
Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational
Documents and this Agreement in the preparation, filing and distribution of the Registration Statement, any solicitation of proxies thereunder,
the calling and holding of the Purchaser Special Meeting and the Redemption.
5.13
Company Stockholder Meeting. As promptly as practicable after the Registration Statement has become effective, the Company will
call a meeting of its stockholders in order to obtain the Required Company Stockholder Approval (the “Company Special Meeting”),
and the Company shall use its reasonable best efforts to solicit from the Company Stockholders proxies in favor of the Required Company
Stockholder Approval prior to such Company Special Meeting, and to take all other actions necessary or advisable to secure the Required
Company Stockholder Approval, including enforcing the Voting Agreements.
5.14
Public Announcements.
(a)
The Parties agree that during the Interim Period no public release, filing or announcement concerning this Agreement or the Ancillary
Documents or the transactions contemplated hereby or thereby shall be issued by any Party or any of their Affiliates without the prior
written consent of the Purchaser and the Company (which consent shall not be unreasonably withheld, conditioned or delayed), except as
such release or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case
the applicable Party shall use commercially reasonable efforts to allow the other Parties reasonable time to comment on, and arrange
for any required filing with respect to, such release or announcement in advance of such issuance.
(b)
The Parties shall mutually agree upon and, as promptly as practicable after the execution of this Agreement (but in any event within
four (4) Business Days thereafter), issue a press release announcing the execution of this Agreement (the “Signing Press
Release”). Promptly after the issuance of the Signing Press Release, the Purchaser shall file a current report on Form
8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by
Federal Securities Laws, which the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld,
conditioned or delayed) prior to filing (with the Company reviewing, commenting upon and approving such Signing Filing in any event no
later than the third (3rd) Business Day after the execution of this Agreement). The Parties shall mutually agree upon and,
as promptly as practicable after the Closing (but in any event within four (4) Business Days thereafter), issue a press release announcing
the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”). Promptly
after the issuance of the Closing Press Release, the Purchaser shall file a current report on Form 8-K (the “Closing Filing”)
with the Closing Press Release and a description of the Closing as required by Federal Securities Laws which the Seller Representative
and the Purchaser Representative shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned
or delayed) prior to filing. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Filing,
the Closing Press Release, or any other report, statement, filing notice or application made by or on behalf of a Party to any Governmental
Authority or other third party in connection with the transactions contemplated hereby, each Party shall, upon request by any other Party,
furnish the Parties with all information concerning themselves, their respective directors, officers and equity holders, and such other
matters as may be reasonably necessary or advisable in connection with the transactions contemplated hereby, or any other report, statement,
filing, notice or application made by or on behalf of a Party to any third party and/ or any Governmental Authority in connection with
the transactions contemplated hereby.
5.15
Confidential Information.
(a)
The Company and the Seller Representative hereby agree that during the Interim Period and, in the event that this Agreement is terminated
in accordance with Article VII, for a period of two (2) years after such termination, they shall, and shall cause their respective
Representatives to: (i) treat and hold in strict confidence any Purchaser Confidential Information, and will not use for any purpose
(except in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, performing
their obligations hereunder or thereunder, enforcing their rights hereunder or thereunder, or in furtherance of their authorized duties
on behalf of the Purchaser or its Subsidiaries), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make
available to any third party any of the Purchaser Confidential Information without the Purchaser’s prior written consent; and (ii)
in the event that the Company, the Seller Representative or any of their respective Representatives, during the Interim Period or, in
the event that this Agreement is terminated in accordance with Article VII, for a period of two (2) years after such termination,
becomes legally compelled to disclose any Purchaser Confidential Information, (A) provide the Purchaser to the extent legally permitted
with prompt written notice of such requirement so that the Purchaser or an Affiliate thereof may seek, at Purchaser’s cost, a protective
Order or other remedy or waive compliance with this Section 5.15(a), and (B) in the event that such protective Order or other
remedy is not obtained, or the Purchaser waives compliance with this Section 5.15(a), furnish only that portion of such Purchaser
Confidential Information which is legally required to be provided as advised in writing by outside counsel and to exercise its commercially
reasonable efforts to obtain assurances that confidential treatment will be accorded such Purchaser Confidential Information. In the
event that this Agreement is terminated and the transactions contemplated hereby are not consummated, the Company and the Seller Representative
shall, and shall cause their respective Representatives to, promptly deliver to the Purchaser or destroy (at Purchaser’s election)
any and all copies (in whatever form or medium) of Purchaser Confidential Information and destroy all notes, memoranda, summaries, analyses,
compilations and other writings related thereto or based thereon; provided, however, that the Company and the Seller Representative and
their respective Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention policies;
and provided, further, that any Purchaser Confidential Information that is not returned or destroyed shall remain subject to the confidentiality
obligations set forth in this Agreement.
(b)
The Purchaser hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article
VII, for a period of two (2) years after such termination, it shall, and shall cause its Representatives to: (i) treat and hold in
strict confidence any Company Confidential Information, and will not use for any purpose (except in connection with the consummation
of the transactions contemplated by this Agreement or the Ancillary Documents, performing its obligations hereunder or thereunder or
enforcing its rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make
available to any third party any of the Company Confidential Information without the Company’s prior written consent; and (ii)
in the event that the Purchaser or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated
in accordance with Article VII, for a period of two (2) years after such termination, becomes legally compelled to disclose
any Company Confidential Information, (A) provide the Company to the extent legally permitted with prompt written notice of such requirement
so that the Company may seek, at the Company’s sole expense, a protective Order or other remedy or waive compliance with this Section
5.15(b) and (B) in the event that such protective Order or other remedy is not obtained, or the Company waives compliance with
this Section 5.15(b), furnish only that portion of such Company Confidential Information which is legally required to be
provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential
treatment will be accorded such Company Confidential Information. In the event that this Agreement is terminated and the transactions
contemplated hereby are not consummated, the Purchaser shall, and shall cause its Representatives to, promptly deliver to the Company
or destroy (at the Purchaser’s election) any and all copies (in whatever form or medium) of Company Confidential Information and
destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however,
that the Purchaser and its Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention
policies; and provided, further, that any Company Confidential Information that is not returned or destroyed shall remain subject to
the confidentiality obligations set forth in this Agreement. Notwithstanding the foregoing, the Purchaser and its Representatives shall
be permitted to disclose any and all Company Confidential Information to the extent required by the Federal Securities Laws.
5.16
Documents and Information. After the Closing Date, the Purchaser and the Company shall, and shall cause their respective Subsidiaries
to, until the seventh (7th) anniversary of the Closing Date, retain all books, records and other documents pertaining to the
business of the Company in existence on the Closing Date and make the same available for inspection and copying by the Purchaser Representative
during normal business hours of the Company upon reasonable request and upon reasonable notice.
5.17
Post-Closing Board of Directors and Executive Officers.
(a)
The Parties shall take all necessary action, including causing the directors of the Purchaser to resign, so that effective as of the
Closing, the Purchaser’s board of directors (the “Post-Closing Purchaser Board”) will consist of seven
(7) individuals. Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing
Purchaser Board (i) four (4) persons that are designated by the Company prior to the Closing (the “Company Directors”),
at least one (1) of whom shall be required to qualify as an independent director under Nasdaq rules, and (ii) three (3) persons that
are mutually agreed on by the Company and Purchaser prior to the Closing, all of whom shall be required to qualify as an independent
director under Nasdaq rules (the “Purchaser Directors”, and together with the Company Directors, the “Directors”
and each individually a “Director”), who shall be required to qualify as an independent director under Nasdaq
rules. At or prior to the Closing, the Purchaser will provide each Director with a customary director indemnification agreement, in form
and substance reasonably acceptable to such Director.
(b)
The Parties shall take all action necessary, including causing the executive officers of Purchaser to resign, so that the individuals
serving as the chief executive officer and chief financial officer, respectively, of Purchaser immediately after the Closing will be
the same individuals (in the same office) as that of the Company immediately prior to the Closing (unless, at its sole discretion, the
Company desires to appoint another qualified person to either such role, in which case, such other person identified by the Company shall
serve in such role).
5.18
Indemnification of Directors and Officers; Tail Insurance.
(a)
The Parties agree that all rights to exculpation, indemnification and advancement of expenses existing in favor of the current or former
directors and officers of the Purchaser, Merger Sub or the Company and each Person who served as a director, officer, member, trustee
or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request
of the Purchaser, Merger Sub or the Company (the “D&O Indemnified Persons”) as provided in their respective
Organizational Documents or under any indemnification, employment or other similar agreements between any D&O Indemnified Person
and the Purchaser or Merger Sub, in each case as in effect on the date of this Agreement, shall survive the Closing and continue in full
force and effect in accordance with their respective terms to the extent permitted by applicable Law. For a period of six (6) years after
the Effective Time, the Purchaser shall cause the Organizational Documents of the Purchaser and the Surviving Corporation to contain
provisions no less favorable with respect to exculpation and indemnification of and advancement of expenses to D&O Indemnified Persons
than are set forth as of the date of this Agreement in the Organizational Documents of the Purchaser, Merger Sub and the Company to the
extent permitted by applicable Law. The provisions of this Section 5.18 shall survive the consummation of the Merger and are
intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Persons and their respective heirs and
representatives.
(b)
For the benefit of the Purchaser’s and Merger Sub’s directors and officers, the Purchaser shall be permitted prior to the
Effective Time to obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year
period from and after the Effective Time for events occurring prior to the Effective Time (the “D&O Tail Insurance”)
that is substantially equivalent to and in any event not less favorable in the aggregate than the Purchaser’s existing policy or,
if substantially equivalent insurance coverage is unavailable, the best available coverage. If obtained, the Purchaser shall maintain
the D&O Tail Insurance in full force and effect, and continue to honor the obligations thereunder, and the Purchaser shall timely
pay or caused to be paid all premiums with respect to the D&O Tail Insurance.
5.19
Trust Account Proceeds. The Parties agree that after the Closing, the funds in the Trust Account, after taking into account payments
for the Redemption, and any proceeds received by Purchaser from any PIPE Investment shall first be used to pay (i) the Purchaser’s
accrued Expenses, (ii) the Purchaser’s deferred Expenses (including cash amounts payable to the IPO Underwriter and any legal fees)
of the IPO and (iii) any loans owed by the Purchaser to the Sponsor for any Expenses (including deferred Expenses), other administrative
costs and expenses incurred by or on behalf of the Purchaser or Extension Expenses and (iii) any other Liabilities of the Purchaser as
of the Closing. Such Expenses, as well as any Expenses that are required to be paid by delivery of the Purchaser’s securities,
will be paid at the Closing. Any remaining cash will be used for working capital and general corporate purposes of the Purchaser and
the Surviving Corporation.
5.20
PIPE Investment. Without limiting anything to the contrary contained herein, during the Interim Period, Purchaser may, but shall
not be required to, enter into and consummate subscription agreements with investors relating to a private equity investment in Purchaser
to purchase shares of the Purchaser in connection with a private placement, and/or enter into forward purchase arrangements or backstop
arrangements with potential investors, in each case on terms mutually agreeable to the Company and Purchaser, acting reasonably (a “PIPE
Investment”), and, if Purchaser elects to seek a PIPE Investment, Purchaser and the Company shall, and shall cause their
respective Representatives to, cooperate with each other and their respective Representatives in connection with such PIPE Investment
and use their respective commercially reasonable efforts to cause such PIPE Investment to occur (including having the Company’s
senior management participate in any investor meetings and roadshows as reasonably requested by Purchaser).
5.21
Employment Agreements. Effective on the Closing Date, the Purchaser shall enter into employment agreements with key executive
listed on Schedule 5.21 (the “New Employment Agreements”), which agreements shall be mutually satisfactory
to the Company, the Purchaser and the employee.
5.22
Company Amended Charter and Class B Share Exchange. Either prior to or promptly after the date of this Agreement, the Company
shall form a special committee of the Board of Directors of the Company (the “Company Special Committee”),
which Company Special Committee shall exclude the Company Founders (or their respective Affiliates). The Special Committee shall negotiate
with the Company Founders (i) one or more amendments to the Company Certificate of Incorporation, in form and substance acceptable to
the Company Special Committee (in its sole discretion) and the Company Founders, to create and authorize shares of Company Class B Common
Stock (the “Amended Company Charter”), and (ii) an exchange of the shares of Company Class A Common Stock held
by each of the Company Founders (or their respective Affiliates) for an equal number of shares of Company Class B Common Stock for such
consideration as agreed by the Company Special Committee (the “Class B Share Exchange”), which Amended Company
Charter and Class B Share Exchange would become effective immediately prior to the Effective Time, subject to the High Vote Company Stockholder
Approval. If the Company Special Committee and the Company Founders come to an agreement with respect to the Amended Company Charter
and the Class B Share Exchange, then promptly after such agreement, the Company shall submit such agreement to the Company Stockholders
for approval by a majority of the issued and outstanding shares of Company Common Stock under the terms of the Company Certificate of
Incorporation, in each case excluding any shares of Company Common Stock held by the Company Founders or their respect Affiliates (the
“High Vote Company Stockholder Approval”). Subject to the execution of an agreement between the Company Special
Committee and the Company Founders regarding the Amended Company Charter and the Class B Share Exchange, and the approval thereof by
the High Vote Company Stockholder Approval, the Company shall file the Amended Company Charter with the Secretary of State of the State
of Nevada and consummate the Class B Share Exchange, in each case, effective immediately prior to the Effective Time.
Article
VI
CLOSING CONDITIONS
6.1
Conditions to Each Party’s Obligations. The obligations of each Party to consummate the Merger and the other transactions
described herein shall be subject to the satisfaction or written waiver (where permissible) by the Company and the Purchaser of the following
conditions:
(a)
Required Purchaser Stockholder Approval. The Purchaser Stockholder Approval Matters that are submitted to the vote of the stockholders
of the Purchaser at the Purchaser Special Meeting in accordance with the Proxy Statement shall have been approved by the requisite vote
of the stockholders of the Purchaser at the Purchaser Special Meeting in accordance with the Purchaser’s Organizational Documents,
applicable Law and the Proxy Statement (the “Required Purchaser Stockholder Approval”).
(b)
Required Company Stockholder Approval. The Company Special Meeting shall have been held in accordance with the NRS and the Company’s
Organizational Documents, and at such meeting, the requisite vote of the Company Stockholders (including any separate class or series
vote that is required, whether pursuant to the Company’s Organizational Documents, any stockholder agreement or otherwise) shall
have authorized, approved and consented to, the execution, delivery and performance of this Agreement and each of the Ancillary Documents
to which the Company is or is required to be a party or bound, and the consummation of the transactions contemplated hereby and thereby,
including the Merger (the “Required Company Stockholder Approval”).
(c)
Antitrust Laws. Any waiting period (and any extension thereof) applicable to the consummation of this Agreement under any Antitrust
Laws shall have expired or been terminated.
(d)
Requisite Regulatory Approvals. All Consents required to be obtained from or made with any Governmental Authority in order to
consummate the transactions contemplated by this Agreement shall have been obtained or made.
(e)
Requisite Consents. The Consents required to be obtained from or made with any third Person (other than a Governmental Authority)
in order to consummate the transactions contemplated by this Agreement that are set forth in Schedule 6.1(e) shall have each
been obtained or made.
(f)
No Adverse Law or Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether
temporary, preliminary or permanent) or Order that is then in effect and which has the effect of making the transactions or agreements
contemplated by this Agreement illegal or which otherwise prevents or prohibits consummation of the transactions contemplated by this
Agreement.
(g)
Minimum Cash Condition. Upon the Closing, the Purchaser shall have cash and cash equivalents, including (i) funds remaining in
the Trust Account (after giving effect to the completion and payment of the Redemption) and (ii) the proceeds from any PIPE Investment,
equal to at least Ten Million U.S. Dollars ($10,000,000), after payment of amounts owed to the Sponsor and its affiliates but prior to
payment of Transaction Expenses in an aggregate amount not to exceed One Million Six Hundred Thousand dollars ($1,600,000). For the avoidance
of doubt, the cash proceeds of any convertible notes of the Purchaser and the proceeds of any forward purchase agreement shall count
towards meeting the above minimum cash condition.
(h)
Appointment to the Board. The members of the Post-Closing Purchaser Board shall have been elected or appointed as of the Closing
consistent with the requirements of Section 5.17.
(i)
Registration Statement. The Registration Statement shall have been declared effective by the SEC and shall remain effective as
of the Closing, and no stop order or similar order shall be in effect with respect to the Registration Statement.
6.2
Conditions to Obligations of the Company. In addition to the conditions specified in Section 6.1, the obligations of
the Company to consummate the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or written
waiver by the Company of the following conditions:
(a)
Representations and Warranties. All of the representations and warranties of the Purchaser set forth in this Agreement and in
any certificate delivered by or on behalf of the Purchaser pursuant hereto shall be true and correct on and as of the date of this Agreement
and on and as of the Closing Date as if made on the Closing Date, except for (i) those representations and warranties that address matters
only as of a particular date (which representations and warranties shall have been accurate as of such date), and (ii) any failures to
be true and correct that (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect), individually
or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the
Purchaser.
(b)
Agreements and Covenants. The Purchaser shall have performed in all material respects all of the Purchaser’s obligations
and complied in all material respects with all of the Purchaser’s agreements and covenants under this Agreement to be performed
or complied with by it on or prior to the Closing Date.
(c)
No Purchaser Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Purchaser since the date
of this Agreement which is continuing and uncured.
(d)
Closing Deliveries.
(i)
Officer Certificate. The Purchaser shall have delivered to the Company a certificate, dated
the Closing Date, signed by an executive officer of the Purchaser in such capacity, certifying as to the satisfaction of the conditions
specified in Sections 6.2(a), 6.2(b) and 6.2(c).
(ii)
Secretary Certificate. The Purchaser shall have delivered to the Company a certificate
from its secretary or other executive officer certifying as to, and attaching, (A) copies of the Purchaser’s Organizational Documents
as in effect as of the Closing Date, (B) the resolutions of the Purchaser’s board of directors authorizing and approving the execution,
delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the
consummation of the transactions contemplated hereby and thereby, (C) evidence that the Required Purchaser Stockholder Approval has been
obtained and (D) the incumbency of officers authorized to execute this Agreement or any Ancillary Document to which the Purchaser is
or is required to be a party or otherwise bound.
(iii)
Good Standing. The Purchaser shall have delivered to the Company a good standing certificate
(or similar documents applicable for such jurisdictions) for the Purchaser certified as of a date no earlier than thirty (30) days prior
to the Closing Date from the proper Governmental Authority of the Purchaser’s jurisdiction of organization and from each other
jurisdiction in which the Purchaser is qualified to do business as a foreign entity as of the Closing, in each case to the extent that
good standing certificates or similar documents are generally available in such jurisdictions.
(iv)
Registration Rights Agreement. The Company shall have received a copy of a Registration
Rights Agreement form and substance reasonably acceptable to the Purchaser and the Company, duly executed by the Purchaser and the Sponsor.
(v)
Amended Purchaser Charter. The Amended Purchaser Charter, in form and substance
reasonably acceptable to the Purchaser and the Company, shall have been filed with, and declared effective by, the Delaware Secretary
of State (provided, that if the Amended Company Charter and the Class B Share Exchange are not agreed to by the Company Special Committee
or not approved by the High Vote Company Stockholder Approval, the Amended Purchaser Charter will not include any provisions regarding
the Purchaser Class B Common Stock).
6.3
Conditions to Obligations of the Purchaser. In addition to the conditions specified in Section 6.1, the obligations
of the Purchaser and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement are subject to the
satisfaction or written waiver (by the Purchaser) of the following conditions:
(a)
Representations and Warranties. All of the representations and warranties of the Company set forth in this Agreement and in any
certificate delivered by or on behalf of the Company pursuant hereto shall be true and correct on and as of the date of this Agreement
and on and as of the Closing Date as if made on the Closing Date, except for (i) those representations and warranties that address matters
only as of a particular date (which representations and warranties shall have been accurate as of such date), and (ii) any failures to
be true and correct that (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect), individually
or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the
Company, taken as a whole.
(b)
Agreements and Covenants. The Company shall have performed in all material respects all of its obligations and complied in all
material respects with all of its agreements and covenants under this Agreement to be performed or complied with by it on or prior to
the Closing Date.
(c)
No Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Company taken as a whole since
the date of this Agreement which is continuing and uncured.
(d)
Certain Ancillary Documents. Each Lock-Up Agreement and Non-Competition Agreement shall have been dully executed by the Significant
Company Holders and shall be in full force and effect in accordance with the terms thereof as of the Closing.
(e)
Closing Deliveries.
(i)
Officer Certificate. The Purchaser shall have received a certificate from the Company,
dated as the Closing Date, signed by an executive officer of the Company in such capacity, certifying as to the satisfaction of the conditions
specified in Sections 6.3(a), 6.3(b) and 6.3(c).
(ii)
Secretary Certificate. The Company shall have delivered to the Purchaser a certificate
executed by the Company’s secretary certifying as to the validity and effectiveness of, and attaching, (A) copies of the Company’s
Organizational Documents as in effect as of the Closing Date (immediately prior to the Effective Time), (B) the requisite resolutions
of the Company’s board of directors authorizing and approving the execution, delivery and performance of this Agreement and each
Ancillary Document to which the Company is or is required to be a party or bound, and the consummation of the Merger and the other transactions
contemplated hereby and thereby, and the adoption of the Surviving Corporation Organizational Documents, and recommending the approval
and adoption of the same by the Company Stockholders, and (C) the incumbency of officers of the Company authorized to execute this Agreement
or any Ancillary Document to which the Company is or is required to be a party or otherwise bound.
(iii)
Good Standing. The Company shall have delivered to the Purchaser good standing certificates
(or similar documents applicable for such jurisdictions) for the Company certified as of a date no earlier than thirty (30) days prior
to the Closing Date from the proper Governmental Authority of the Company’s jurisdiction of organization and from each other jurisdiction
in which the Company is qualified to do business as a foreign corporation or other entity as of the Closing, in each case to the extent
that good standing certificates or similar documents are generally available in such jurisdictions.
(iv)
Certified Charter. The Company shall have delivered to the Purchaser a copy of the Company
Charter, as in effect as of immediately prior to the Effective Time, certified by the Secretary of State of the State of Nevada as of
a date no more than ten (10) Business Days prior to the Closing Date.
(v)
Employment Agreements. The Purchaser shall have received the New Employment Agreements,
in each case effective as of the Closing, in form and substance reasonably acceptable to the Company and the Purchaser, between each
of the persons set forth Schedule 5.21 hereto and the Company or the Purchaser, as noted in Schedule 5.21, each such
employment agreement duly executed by the parties thereto.
(vi)
Transmittal Documents. The Exchange Agent shall have received from each Company Stockholder
the Transmittal Documents, each in form reasonably acceptable for transfer on the books of the Company.
(vii)
Company Convertible Securities. The Purchaser shall have received evidence reasonably acceptable
to the Purchaser that the Company shall have terminated, extinguished and cancelled in full any outstanding Company Convertible Securities
(with the exception of the Assumed Options) or commitments therefor.
(viii)
Termination of Certain Contracts. The Purchaser shall have received evidence reasonably
acceptable to the Purchaser that the Contracts involving the Company and/or Company Stockholder or other Related Persons set forth on
Schedule 6.3(e)(viii) shall have been terminated with no further obligation or Liability of the Company thereunder.
6.4
Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any
condition set forth in this Article VI to be satisfied if such failure was caused by the failure of such Party or its Affiliates (or
with respect to the Company, the Company or Company Stockholder) failure to comply with or perform any of its covenants or obligations
set forth in this Agreement.
Article
VII
TERMINATION AND EXPENSES
7.1
Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the
Closing as follows:
(a)
by mutual written consent of the Purchaser and the Company;
(b)
by written notice by the Purchaser or the Company if any of the conditions to the Closing set forth in Article VI have not been satisfied
or waived by January 29, 2024 (the “Outside Date”) (provided, that if Purchaser seeks and obtains an Extension,
Purchaser shall have the right by providing written notice thereof to the Company to extend the Outside Date for an additional period
equal to the shortest of (i) three (3) additional months, (ii) the period ending on the last date for Purchaser to consummate its Business
Combination pursuant to such Extension and (iii) such period as determined by Purchaser); provided, however, the right to terminate
this Agreement under this Section 7.1(b) shall not be available to a Party if the breach or violation by such Party or its
Affiliates of any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure
of the Closing to occur on or before the Outside Date;
(c)
by written notice by either the Purchaser or the Company if a Governmental Authority of competent jurisdiction shall have issued an Order
or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement,
and such Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement
pursuant to this Section 7.1(c) shall not be available to a Party if the failure by such Party or its Affiliates to comply
with any provision of this Agreement has been a substantial cause of, or substantially resulted in, such action by such Governmental
Authority;
(d)
by written notice by the Company to Purchaser, if (i) there has been a breach by the Purchaser of any of its representations,
warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of the Purchaser shall have
become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 6.2(a) or Section
6.2(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the
date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty
(20) days after written notice of such breach or inaccuracy is provided to the Purchaser or (B) the Outside Date; provided, that the
Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(d) if at such time the Company is
in material uncured breach of this Agreement;
(e)
by written notice by the Purchaser to the Company, if (i) there has been a breach by the Company of any of its representations, warranties,
covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become untrue or
inaccurate, in any case, which would result in a failure of a condition set forth in Section 6.3(a) or Section 6.3(b)
to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach),
and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written
notice of such breach or inaccuracy is provided to the Company or (B) the Outside Date; provided, that the Purchaser shall not have the
right to terminate this Agreement pursuant to this Section 7.1(e) if at such time the Purchaser is in material uncured breach
of this Agreement;
(f)
by written notice by the Purchaser to the Company, if there shall have been a Material Adverse Effect on the Company taken as a whole
following the date of this Agreement which is uncured and continuing;
(g)
by written notice by either the Purchaser or the Company to the other, if the Purchaser Special Meeting is held (including any adjournment
or postponement thereof) and has concluded, the Purchaser’s stockholders have duly voted, and the Required Purchaser Stockholder
Approval was not obtained; or
(h)
by written notice by either the Purchaser or the Company to the other, if the Company Special Meeting is held (including any adjournment
or postponement thereof) and has concluded, the Company Stockholders have duly voted, and the Required Company Stockholder Approval was
not obtained.
7.2
Effect of Termination. This Agreement may only be terminated in the circumstances described in Section 7.1 and pursuant
to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination,
including the provision of Section 7.1 under which such termination is made. In the event of the valid termination of this
Agreement pursuant to Section 7.1, this Agreement shall forthwith become void, and there shall be no Liability on the part
of any Party or any of their respective Representatives, and all rights and obligations of each Party shall cease, except: (i) Sections
5.14, 5.15, 7.3,7.4 8.1, Article IX and this Section 7.2 shall survive the termination of this Agreement, and (ii)
nothing herein shall relieve any Party from Liability for any willful breach of any representation, warranty, covenant or obligation
under this Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses
(i) and (ii) above, subject to Section 8.1). Without limiting the foregoing, and except as provided in Sections 7.3
and this Section 7.2 (but subject to Section 8.1) and subject to the right to seek injunctions, specific performance
or other equitable relief in accordance with Section 9.9, the Parties’ sole right prior to the Closing with respect to
any breach of any representation, warranty, covenant or other agreement contained in this Agreement by another Party or with respect
to the transactions contemplated by this Agreement shall be the right, if applicable, to terminate this Agreement pursuant to Section
7.1.
7.3
Fees and Expenses. Subject to Sections 8.1 and 9.16 all Expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the Party incurring such expenses. As used in this Agreement, “Expenses”
shall include all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, financial advisors,
financing sources, experts and consultants to a Party hereto or any of its Affiliates) incurred by a Party or on its behalf in connection
with or related to the authorization, preparation, negotiation, execution or performance of this Agreement or any Ancillary Document
related hereto and all other matters related to the consummation of this Agreement. With respect to the Purchaser, Expenses shall include
any and all deferred expenses (including fees or commissions payable to the underwriters and any legal fees) of the IPO upon consummation
of a Business Combination and any Extension Expenses.
7.4
Termination Fee. Notwithstanding Section 7.3 above, in the event that there is a valid and effective termination of
this Agreement by Purchaser pursuant to Section 7.1(e) then the Company shall pay to Purchaser a termination fee equal to Two
Hundred and Fifty Thousand Dollars ($250,000) plus an amount equal to the aggregate Purchaser Transaction Expenses actually and directly
incurred by Purchaser (such aggregate amount, the “Termination Fee”); provided that the Termination Fee shall
not exceed an aggregate of Seven Hundred and Fifty Thousand Dollars ($750,000). The Termination Fee shall be paid by wire transfer of
immediately available funds to an account designated in writing by Purchaser within five (5) Business Days after Purchaser delivers to
the Company the amount of such Expenses, along with reasonable documentation in connection therewith. Notwithstanding anything to the
contrary in this Agreement, the Parties expressly acknowledge and agree that, with respect to any termination of this Agreement in circumstances
where the Termination Fee is payable, the payment of the Termination Fee shall, in light of the difficulty of accurately determining
actual damages, constitute liquidated damages with respect to any claim for damages or any other claim which Purchaser would otherwise
be entitled to assert against the Company or any of its Affiliates or any of their respective assets, or against any of their respective
directors, officers, employees or shareholders with respect to this Agreement and the transactions contemplated hereby and shall constitute
the sole and exclusive remedy available to Purchaser, provided, that the foregoing shall not limit (x) the Company from Liability for
any Fraud Claim relating to events occurring prior to termination of this Agreement or (y) the rights of Purchaser to seek specific performance
or other injunctive relief in lieu of terminating this Agreement.
Article
VIII
WAIVERS AND RELEASES
8.1
Waiver of Claims Against Trust. Reference is made to the IPO Prospectus. The Company and the Seller Representative each hereby
represents and warrants that it has read the IPO Prospectus and understands that Purchaser has established the Trust Account containing
the proceeds of the IPO and the overallotment shares acquired by Purchaser’s underwriters and from certain private placements occurring
simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of Purchaser’s public stockholders
(including overallotment shares acquired by Purchaser’s underwriters) (the “Public Stockholders”) and
that, except as otherwise described in the IPO Prospectus, Purchaser may disburse monies from the Trust Account only: (a) to the Public
Stockholders in the event they elect to redeem their shares of Purchaser Class A Common Stock in connection with the consummation of
its initial business combination (as such term is used in the IPO Prospectus) (“Business Combination”) or in
connection with an amendment to Purchaser’s Organizational Documents to extend Purchaser’s deadline to consummate a Business
Combination, (b) to the Public Stockholders if the Purchaser fails to consummate a Business Combination within twelve (12) months after
the closing of the IPO (or up to 18 months from the closing of the IPO if the Purchaser extends the period of time to consummate a business
combination by the maximum amount as described in more detail in the Prospectus), subject to extension by an amendment to Purchaser’s
Organizational Documents, (c) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay
franchise and income taxes and up to $50,000 of dissolution expenses, and (d) to Purchaser after or concurrently with the consummation
of a Business Combination. For and in consideration of Purchaser entering into this Agreement and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, each of the Company and the Seller Representative hereby agrees on behalf
of itself and its Affiliates that, notwithstanding anything to the contrary in this Agreement, none of the Company or the Seller Representative
nor any of their respective Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in
or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions
therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any
proposed or actual business relationship between Purchaser or any of its Representatives, on the one hand, and the Company, the Seller
Representative or any of their respective Representatives, on the other hand, or any other matter, and regardless of whether such claim
arises based on contract, tort, equity or any other theory of legal liability (collectively, the “Released Claims”).
Each of the Company and the Seller Representative on behalf of itself and its Affiliates hereby irrevocably waives any Released Claims
that any such Party or any of its Affiliates may have against the Trust Account (including any distributions therefrom) now or in the
future as a result of, or arising out of, any negotiations, contracts or agreements with Purchaser or its Representatives and will not
seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach
of this Agreement or any other agreement with Purchaser or its Affiliates). The Company and the Seller Representative each agrees and
acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by Purchaser and its Affiliates
to induce Purchaser to enter in this Agreement, and each of the Company and the Seller Representative further intends and understands
such waiver to be valid, binding and enforceable against such Party and each of its Affiliates under applicable Law. To the extent that
the Company or the Seller Representative or any of their respective Affiliates commences any Action based upon, in connection with, relating
to or arising out of any matter relating to Purchaser or its Representatives, which proceeding seeks, in whole or in part, monetary relief
against Purchaser or its Representatives, each of the Company and the Seller Representative hereby acknowledges and agrees that its and
its Affiliates’ sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit such
Party or any of its Affiliates (or any Person claiming on any of their behalves or in lieu of them) to have any claim against the Trust
Account (including any distributions therefrom) or any amounts contained therein. In the event that the Company or the Seller Representative
or any of their respective Affiliates commences Action based upon, in connection with, relating to or arising out of any matter relating
to Purchaser or its Representatives which proceeding seeks, in whole or in part, relief against the Trust Account (including any distributions
therefrom) or the Public Stockholders, whether in the form of money damages or injunctive relief, Purchaser and its Representatives,
as applicable, shall be entitled to recover from the Company, the Seller Representative and their respective Affiliates, as applicable,
the associated legal fees and costs in connection with any such Action, in the event Purchaser or its Representatives, as applicable,
prevails in such Action. This Section 8.1 shall survive termination of this Agreement for any reason and continue indefinitely.
Article
IX
MISCELLANEOUS
9.1
Non-Survival of Representations, Warranties and Covenants. The representations and warranties of the Parties contained in this Agreement
or in any certificate or instrument delivered by or on behalf of the Parties pursuant to this Agreement shall not survive the Closing,
including any rights arising out of any breach of such representations and warranties, and shall terminate and expire upon the occurrence
of the Closing (and there shall be no liability after the Closing in respect thereof), and from and after the Closing, the Parties and
their respective Representatives shall not have any further obligations, nor shall any claim be asserted or action be brought against
the Parties or their respective Representatives with respect thereto. The covenants and agreements made by the Parties in this Agreement
or in any certificate or instrument delivered by or on behalf of the Parties pursuant to this Agreement, including any rights arising
out of any breach of such covenants or agreements, shall not survive the Closing, and shall terminate and expire upon the occurrence
of the Closing (and there shall be no liability after the Closing in respect thereof), except for (i) those covenants and agreements
contained herein and therein that by their terms expressly contemplate performance in whole or in part after the Closing (which such
covenants shall survive the Closing and continue until fully performed in accordance with their terms), and then only with respect to
any breaches occurring after the Closing, and (ii) Article VIII and this Article IX.
9.2
Non-Recourse. This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related
to this Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as Parties
and then only with respect to the specific obligations set forth herein with respect to such Party. Except to the extent that such Person
or entity is a Party hereto (and then only to the extent of the specific obligations undertaken by such Party in this Agreement), (a)
no past, present or future director, officer, employee, sponsor, incorporator, member, partner, stockholder, Affiliate, agent, attorney,
advisor or representative or Affiliate of any Party and (b) no past, present or future director, officer, employee, sponsor, incorporator,
member, partner, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing shall have any
liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements
or other obligations or liabilities of any one or more of the Purchaser, Merger Sub or the Company under this Agreement of or for any
claim based on, arising out of, or related to this Agreement or the transactions contemplated hereby.
9.3
Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered (i) in person, (ii) by facsimile or other electronic means (including email), with affirmative confirmation
of receipt, (iii) one Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three
(3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to
the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
If
to the Purchaser or Merger Sub at or prior to the Closing, to:
Deep
Medicine Acquisition Corp.
595 Madison Avenue, 12th Floor,
New
York, NY 10017
Attn: Humphrey P. Polanen, CEO
Telephone No.: (917) 289-2776
Email: humphrey.polanen@gmail.com |
with
a copy (which will not constitute notice) to:
Ellenoff
Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
Attn: Barry I. Grossman, Esq.
Lloyd
N. Steele, Esq.
Facsimile
No.: (212) 370-7889
Telephone No.: (212) 370-1300
Email: bigrossman@egsllp.com
lsteele@egsllp.com |
If
to the Purchaser Representative, to:
Bright
Vision Sponsor LLC
595 Madison Avenue, 12th Floor
New
York, NY 10017
Attn: Ke Li, Managing Member
Telephone No.: (917) 289-2776
Email: kli@llcpas.net |
with
a copy (which will not constitute notice) to:
Ellenoff
Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
Attn: Barry I. Grossman, Esq.
Lloyd
N. Steele, Esq.
Facsimile No.: (212) 370-7889
Telephone No.: (212) 370-1300
Email: bigrossman@egsllp.com
lsteele@egsllp.com |
If
to the Company or the Surviving Corporation, to:
TruGolf,
Inc.
60
North 1400 West
Centerville,
UT 84014
Attn: Chris Jones, Chief Executive Officer
Telephone No.: (801) 298-1997
Email: chrjones@trugolf.com |
with
a copy (which will not constitute notice) to:
ArentFox
Schiff LLP
1717 K Street NW
Washington,
DC 20006
Attn: Cavas S. Pavri
Telephone
No.: (202) 724-6847
Email: cavas.pavri@afslaw.com |
If
to the Seller Representative to:
Christopher
Jones
60 North 1400 West
Centerville,
UT 84014
Telephone
No.: (801) 298-1997
Email: chrjones@trugolf.com |
with
a copy (which will not constitute notice) to:
ArentFox
Schiff LLP
1717 K Street NW
Washington,
DC 20006
Attn: Cavas S. Pavri
Telephone
No.: (202) 724-6847
Email: cavas.pavri@afslaw.com |
If
to the Purchaser after the Closing, to:
TruGolf,
Inc.
60
North 1400 West
Centerville,
UT 84014
Attn: Chris Jones, Chief Executive Officer
Telephone No.: (801) 298-1997
Email: chrjones@trugolf.com
and
the
Purchaser Representative |
with
a copy (which will not constitute notice) to:
ArentFox
Schiff LLP
1717 K Street NW
Washington,
DC 20006
Attn: Cavas S. Pavri
Telephone
No.: (202) 724-6847
Email: cavas.pavri@afslaw.com
and
Ellenoff
Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
Attn: Barry I. Grossman, Esq.
Lloyd
N. Steele, Esq.
Facsimile No.: (212) 370-7889
Telephone No.: (212) 370-1300
Email: bigrossman@egsllp.com
lsteele@egsllp.com |
9.4
Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of
the Parties hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or
otherwise without the prior written consent of the Purchaser and the Company (and after the Closing, the Purchaser Representative and
the Seller Representative), and any assignment without such consent shall be null and void; provided that no such assignment shall
relieve the assigning Party of its obligations hereunder.
9.5
Third Parties. Except for the rights of the D&O Indemnified Persons set forth in Section 5.18, which the Parties
acknowledge and agree are express third party beneficiaries of this Agreement, nothing contained in this Agreement or in any instrument
or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to
have been executed for the benefit of, any Person that is not a Party hereto or thereto or a successor or permitted assign of such a
Party.
9.6
Arbitration. Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary
injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this Section 9.6,
and any dispute to be determined by the Independent Expert in accordance with Section 1.12) arising out of, related to, or in
connection with this Agreement or the transactions contemplated hereby (a “Dispute”) shall be governed by this
Section 9.6. A party must, in the first instance, provide written notice of any Disputes to the other parties subject to such
Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The parties involved in such
Dispute shall seek to resolve the Dispute on an amicable basis within ten (10) Business Days of the notice of such Dispute being received
by such other parties subject to such Dispute (the “Resolution Period”); provided, that if any Dispute
would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of
such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution
Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing Expedited Procedures (as defined
in the AAA Procedures) of the Commercial Arbitration Rules (the “AAA Procedures”) of the AAA. Any party involved
in such Dispute may submit the Dispute to the AAA to commence the proceedings after the Resolution Period. To the extent that the AAA
Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall be conducted by one arbitrator
nominated by the AAA promptly (but in any event within five (5) Business Days) after the submission of the Dispute to the AAA and reasonably
acceptable to each party subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial experience arbitrating
disputes under acquisition agreements. The arbitrator shall accept his or her appointment and begin the arbitration process promptly
(but in any event within five (5) Business Days) after his or her nomination and acceptance by the parties subject to the Dispute. The
proceedings shall be streamlined and efficient. The arbitrator shall decide the Dispute in accordance with the substantive law of the
state of New York. Time is of the essence. Each party subject to the Dispute shall submit a proposal for resolution of the Dispute to
the arbitrator within twenty (20) days after confirmation of the appointment of the arbitrator. The arbitrator shall have the power to
order any party to do, or to refrain from doing, anything consistent with this Agreement, the Ancillary Documents and applicable Law,
including to perform its contractual obligation(s); provided, that the arbitrator shall be limited to ordering pursuant to the
foregoing power (and, for the avoidance of doubt, shall order) the relevant party (or parties, as applicable) to comply with only one
or the other of the proposals. The arbitrator’s award shall be in writing and shall include a reasonable explanation of the arbitrator’s
reason(s) for selecting one or the other proposal. The seat of arbitration shall be in New York County, State of New York. The language
of the arbitration shall be English.
9.7
Governing Law; Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State
of New York without regard to the conflict of laws principles thereof. Subject to Sections 1.12 and 9.6, all Actions
arising out of or relating to this Agreement shall be heard and determined exclusively in any state or federal court located in New York,
New York (or in any appellate court thereof) (the “Specified Courts”). Subject to Sections 1.12 and
9.6, each Party hereto hereby (a) submits to the exclusive jurisdiction of any Specified Court for the purpose of any Action
arising out of or relating to this Agreement brought by any Party hereto and (b) irrevocably waives, and agrees not to assert by way
of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that
the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any
Specified Court. Each Party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by Law. Each Party irrevocably consents to the service of the summons and complaint
and any other process in any other Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property,
by personal delivery of copies of such process to such Party at the applicable address set forth in Section 9.1. Nothing in
this Section 9.7 shall affect the right of any Party to serve legal process in any other manner permitted by Law.
9.8
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.8.
9.9
Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby
are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and
the non-breaching Parties may have not adequate remedy at law, and agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise
breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement
and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to
prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled
under this Agreement, at law or in equity.
9.10
Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such
provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal
and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or
impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction.
Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute
for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal
and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
9.11
Amendment. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Purchaser,
the Company, the Purchaser Representative and the Seller Representative.
9.12
Waiver. The Purchaser on behalf of itself and its Affiliates, the Company on behalf of itself and its Affiliates, and the Seller
Representative on behalf of itself and the Company Stockholders, may in its sole discretion (i) extend the time for the performance of
any obligation or other act of any other non-Affiliated Party hereto, (ii) waive any inaccuracy in the representations and warranties
by such other non-Affiliated Party contained herein or in any document delivered pursuant hereto and (iii) waive compliance by such other
non-Affiliated Party with any covenant or condition contained herein. Any such extension or waiver shall be valid only if set forth in
an instrument in writing signed by the Party or Parties to be bound thereby (including by the Purchaser Representative or the Seller
Representative in lieu of such Party to the extent provided in this Agreement). Notwithstanding the foregoing, no failure or delay by
a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise of any other right hereunder. Notwithstanding the foregoing, any waiver of any provision of this Agreement
after the Closing shall also require the prior written consent of the Purchaser Representative.
9.13
Entire Agreement. This Agreement and the documents or instruments referred to herein, including any exhibits and schedules attached
hereto, which exhibits and schedules are incorporated herein by reference, together with the Ancillary Documents, embody the entire agreement
and understanding of the Parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred
to herein, which collectively supersede all prior agreements and the understandings among the Parties, including the Original Business
Combination Agreement, with respect to the subject matter contained herein. This Agreement supersedes the Original Business Combination
Agreement in its entirety, and upon the effectiveness of this Agreement, the Original Business Combination Agreement shall no longer
have any force or effect.
9.14
Interpretation. The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose
of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.
In this Agreement, unless the context otherwise requires: (a) any pronoun used shall include the corresponding masculine, feminine or
neuter forms, and words in the singular, including any defined terms, include the plural and vice versa; (b) reference to any Person
includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement,
and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) any accounting term used and not otherwise
defined in this Agreement or any Ancillary Document has the meaning assigned to such term in accordance with GAAP; (d) “including”
(and with correlative meaning “include”) means including without limiting the generality of any description preceding or
succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (e) the words “herein,”
“hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement
as a whole and not to any particular Section or other subdivision of this Agreement; (f) the word “if” and other words of
similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (g) the term “or”
means “and/or”; (h) any reference to the term “ordinary course” or “ordinary course of business”
shall be deemed in each case to be followed by the words “consistent with past practice”; (i) any agreement, instrument,
insurance policy, Law or Order defined or referred to herein or in any agreement or instrument that is referred to herein means such
agreement, instrument, insurance policy, Law or Order as from time to time amended, modified or supplemented, including (in the case
of agreements or instruments) by waiver or consent and (in the case of statutes, regulations, rules or orders) by succession of comparable
successor statutes, regulations, rules or orders and references to all attachments thereto and instruments incorporated therein; (j)
except as otherwise indicated, all references in this Agreement to the words “Section,” “Article”, “Schedule”
and “Exhibit” are intended to refer to Sections, Articles, Schedules and Exhibits to this Agreement; and (k) the term “Dollars”
or “$” means United States dollars. Any reference in this Agreement to a Person’s directors shall include any member
of such Person’s governing body and any reference in this Agreement to a Person’s officers shall include any Person filling
a substantially similar position for such Person. Any reference in this Agreement or any Ancillary Document to a Person’s shareholders
or stockholders shall include any applicable owners of the equity interests of such Person, in whatever form, including with respect
to the Purchaser its stockholders under the DGCL, as then applicable, or its Organizational Documents. The Parties have participated
jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. To the extent that any Contract, document,
certificate or instrument is represented and warranted to by the Company to be given, delivered, provided or made available by the Company,
in order for such Contract, document, certificate or instrument to have been deemed to have been given, delivered, provided and made
available to the Purchaser or its Representatives, such Contract, document, certificate or instrument shall have been posted to the electronic
data site maintained on behalf of the Company for the benefit of the Purchaser and its Representatives and the Purchaser and its Representatives
have been given access to the electronic folders containing such information.
9.15
Counterparts. This Agreement and each Ancillary Document may be executed and delivered (including by facsimile or other electronic
transmission) in one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
9.16
Purchaser Representative.
(a)
The Purchaser, on behalf of itself and its Subsidiaries, successors and assigns, by execution and delivery of this Agreement, hereby
irrevocably appoints Bright Vision SPONSOR LLC, in the capacity as the Purchaser Representative, as each such Person’s agent, attorney-in-fact
and representative, with full power of substitution to act in the name, place and stead of such Person, to act on behalf of such Person
from and after the Closing in connection with: (i) controlling and making any determinations with respect to the post-Closing Merger
Consideration adjustments under Section 1.12; (ii) terminating, amending or waiving on behalf of such Person any provision of
this Agreement or any Ancillary Documents to which the Purchaser Representative is a party or otherwise has rights in such capacity (together
with this Agreement, the “Purchaser Representative Documents”); (iii) signing on behalf of such Person any
releases or other documents with respect to any dispute or remedy arising under any Purchaser Representative Documents; (iv) employing
and obtaining the advice of legal counsel, accountants and other professional advisors as the Purchaser Representative, in its reasonable
discretion, deems necessary or advisable in the performance of its duties as the Purchaser Representative and to rely on their advice
and counsel; (v) incurring and paying reasonable out-of-pocket costs and expenses, including fees of brokers, attorneys and accountants
incurred pursuant to the transactions contemplated hereby, and any other out-of-pocket fees and expenses allocable or in any way relating
to such transaction; and (vi) otherwise enforcing the rights and obligations of any such Persons under any Purchaser Representative Documents,
including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person; provided, that
the Parties acknowledge that the Purchaser Representative is specifically authorized and directed to act on behalf of, and for the benefit
of, the holders of Purchaser Securities (other than the Company Stockholders immediately prior to the Effective Time and its successors
and assigns). All decisions and actions by the Purchaser Representative, including any agreement between the Purchaser Representative
and the Company, Seller Representative, any Company Stockholders shall be binding upon the Purchaser and its Subsidiaries, successors
and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The
provisions of this Section 9.16 are irrevocable and coupled with an interest. The Purchaser Representative hereby accepts its
appointment and authorization as the Purchaser Representative under this Agreement.
(b)
The Purchaser Representative shall not be liable for any act done or omitted under any Purchaser Representative Document as the Purchaser
Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to
the advice of counsel shall be conclusive evidence of such good faith. The Purchaser shall indemnify, defend and hold harmless the Purchaser
Representative from and against any and all losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties,
fines, costs or expenses of whatever kind, including reasonable and documented attorneys’ fees (collectively, “Losses”)
incurred without gross negligence, bad faith or willful misconduct on the part of the Purchaser Representative (in its capacity as such)
and arising out of or in connection with the acceptance or administration of the Purchaser Representative’s duties under any Purchaser
Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Purchaser Representative. In
no event shall the Purchaser Representative in such capacity be liable under or in connection with any Purchaser Representative Document
for any indirect, punitive, special or consequential damages. The Purchaser Representative shall be fully protected in relying upon any
written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof,
and no Person shall have any Liability for relying on the Purchaser Representative in the foregoing manner. In connection with the performance
of its rights and obligations hereunder, the Purchaser Representative shall have the right at any time and from time to time to select
and engage, at the cost and expense of the Purchaser, attorneys, accountants, investment bankers, advisors, consultants and clerical
personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as
the Purchaser Representative may deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers
granted to the Purchaser Representative under this Section 9.16 shall survive the Closing and continue indefinitely.
(c)
The Person serving as the Purchaser Representative may resign upon ten (10) days’ prior written notice to the Purchaser and the
Seller Representative, provided, that the Purchaser Representative appoints in writing a replacement Purchaser Representative. Each successor
Purchaser Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original
Purchaser Representative, and the term “Purchaser Representative” as used herein shall be deemed to include any such successor
Purchaser Representatives.
9.17
Seller Representative.
(a)
Each Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably
constitutes and appoints Christopher Jones, in his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact
of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf
of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party
or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”),
as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such
documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of
the transactions contemplated under the Seller Representative Documents, including: (i) controlling and making any determinations with
respect to the post-Closing Merger Consideration adjustments under Section 1.12; (ii) terminating, amending or waiving on behalf
of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations
of the Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to
all Company Stockholders unless otherwise agreed by each Company Stockholder who is subject to any disparate treatment of a potentially
material and adverse nature); (iii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy
arising under any Seller Representative Document; (iv) employing and obtaining the advice of legal counsel, accountants and other professional
advisors as the Seller Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties as
the Seller Representative and to rely on their advice and counsel; (v) incurring and paying reasonable costs and expenses, including
fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and
expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing;
(vi) receiving all or any portion of the consideration provided to the Company Stockholders under this Agreement and to distribute the
same to the Company Stockholders in accordance with their Pro Rata Share; and (vii) otherwise enforcing the rights and obligations of
any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or
thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller
Representative and the Purchaser Representative, or the Purchaser shall be binding upon each Company Stockholder and their respective
successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the
same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative hereby accepts
its appointment and authorization as the Seller Representative under this Agreement.
(b)
Any other Person, including the Purchaser Representative, the Purchaser, and the Company may conclusively and absolutely rely, without
inquiry, upon any actions of the Seller Representative as the acts of the Company Stockholders under any Seller Representative Documents.
The Purchaser Representative, the Purchaser, and the Company shall be entitled to rely conclusively on the instructions and decisions
of the Seller Representative as to (i) any payment instructions provided by the Seller Representative or (iii) any other actions required
or permitted to be taken by the Seller Representative hereunder, and no Company Stockholder shall have any cause of action against the
Purchaser Representative, the Purchaser, or the Company for any action taken by any of them in reliance upon the instructions or decisions
of the Seller Representative. The Purchaser Representative, the Purchaser, and the Company shall not have any Liability to any Company
Stockholder for any allocation or distribution among the Company Stockholders by the Seller Representative of payments made to or at
the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Company Stockholder
under any Seller Representative Document shall be made to the Seller Representative for the benefit of such Company Stockholder, and
any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to such Company Stockholder
with respect thereto. All notices or other communications required to be made or delivered by a Company Stockholder shall be made by
the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c)
The Seller Representative will act for the Company Stockholders on all of the matters set forth in this Agreement in the manner the Seller
Representative believes to be in the best interest of the Company Stockholders, but the Seller Representative will not be responsible
to the Company Stockholders for any Losses that any Company Stockholder may suffer by reason of the performance by the Seller Representative
of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful
misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Company
Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses
reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity
as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under
any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative.
In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive,
special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative
Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done
or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully
protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including
facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner.
In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time
and from time to time to select and engage, at the reasonable cost and expense of the Company Stockholders, attorneys, accountants, investment
bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records
and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time
to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17
shall survive the Closing and continue indefinitely.
(d)
If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities
as representative and agent of Company Stockholders, then the Company Stockholders shall, within ten (10) days after such death, disability,
dissolution, resignation or other event, appoint a successor Seller Representative (by vote or written consent of the Company Stockholders
holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2)
Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor.
Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
9.18
Legal Representation. The Parties agree that, notwithstanding the fact that EGS may have, prior to Closing, jointly represented
the Purchaser, Merger Sub, the Purchaser Representative and/or the Sponsor in connection with this Agreement, the Ancillary Documents
and the transactions contemplated hereby and thereby, and has also represented the Purchaser and/or its Affiliates in connection with
matters other than the transaction that is the subject of this Agreement, EGS will be permitted in the future, after Closing, to represent
the Sponsor, the Purchaser Representative or their respective Affiliates in connection with matters in which such Persons are adverse
to the Purchaser or any of its Affiliates, including any disputes arising out of, or related to, this Agreement. The Company and the
Seller Representative, who are or have the right to be represented by independent counsel in connection with the transactions contemplated
by this Agreement, hereby agree, in advance, to waive (and to cause their Affiliates to waive) any actual or potential conflict of interest
that may hereafter arise in connection with EGS’s future representation of one or more of the Sponsor, the Purchaser Representative
or their respective Affiliates in which the interests of such Person are adverse to the interests of the Purchaser, the Company and/or
the Seller Representative or any of their respective Affiliates, including any matters that arise out of this Agreement or that are substantially
related to this Agreement or to any prior representation by EGS of the Purchaser, Merger Sub, any Sponsor, the Purchaser Representative
or any of their respective Affiliates. The Parties acknowledge and agree that, for the purposes of the attorney-client privilege, the
Sponsor and the Purchaser Representative shall be deemed the clients of EGS with respect to the negotiation, execution and performance
of this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and
the expectation of client confidence relating thereto shall belong solely to the Sponsor and the Purchaser Representative, shall be controlled
by the Sponsor and the Purchaser Representative and shall not pass to or be claimed by Purchaser or the Surviving Corporation; provided,
further, that nothing contained herein shall be deemed to be a waiver by the Purchaser or any of its Affiliates (including, after
the Effective Time, the Surviving Corporation and its Affiliates) of any applicable privileges or protections that can or may be asserted
to prevent disclosure of any such communications to any third party.
Article
X
DEFINITIONS
10.1
Certain Definitions. For purpose of this Agreement, the following capitalized terms have the following meanings:
“AAA”
means the American Arbitration Association or any successor entity conducting arbitrations.
“Accounting
Principles” means in accordance with GAAP as in effect at the date of the financial statement to which it refers or if
there is no such financial statement, then as of the Closing Date, using and applying the same accounting principles, practices, procedures,
policies and methods (with consistent classifications, judgments, elections, inclusions, exclusions and valuation and estimation methodologies)
used and applied by the Company in the preparation of the latest audited Company Financials.
“Action”
means any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint,
stipulation, assessment or arbitration, or any request (including any request for information), inquiry, hearing, proceeding or investigation,
by or before any Governmental Authority.
“Adjusted
Merger Consideration” means an amount equal to the sum of (i) the Merger Consideration, plus (ii) the aggregate amount
of the exercise prices for all Company Options in accordance with their terms (and assuming no cashless exercise).
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such
Person. For the avoidance of doubt, Sponsor shall be deemed to be an Affiliate or the Purchaser prior to the Closing
“Ancillary
Documents” means each agreement, instrument or document attached hereto as an Exhibit, and the other agreements, certificates
and instruments to be executed or delivered by any of the Parties hereto in connection with or pursuant to this Agreement.
“Base
Consideration” mean Eighty Million U.S. Dollars ($80,000,000).
“Benefit
Plans” of any Person means any and all deferred compensation, executive compensation, incentive compensation, equity purchase
or other equity-based compensation plan, employment or consulting, severance or termination pay, holiday, vacation or other bonus plan
or practice, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension,
or retirement plan, program, agreement, commitment or arrangement, and each other employee benefit plan, program, agreement or arrangement,
including each “employee benefit plan” as such term is defined under Section 3(3) of ERISA, maintained or contributed to
or required to be contributed to by a Person for the benefit of any employee or terminated employee of such Person, or with respect to
which such Person has any Liability.
“Business
Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York,
New York are authorized to close for business, excluding as a result of “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
authority so long as the electronic funds transfer systems, including for wire transfers, of commercial banking institutions in New York,
New York are generally open for use by customers on such day.
“Closing
Company Cash” means, as of the Reference Time, the aggregate cash and cash equivalents of the Company on hand or in bank
accounts, including deposits in transit, minus the aggregate amount of outstanding and unpaid checks issued by or on behalf of the Company
as of such time.
“Closing
Net Debt” means, as of the Reference Time, (i) the aggregate amount of all Indebtedness of the Company, less (ii) the Closing
Company Cash, in each case of clauses (i) and (ii), as determined in accordance with the Accounting Principles.
“Code”
means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as amended. Reference to a specific section of
the Code shall include such section and any valid treasury regulation promulgated thereunder.
“Company
Charter” means the Certificate of Incorporation of the Company, as amended and effective under the NRS, prior to the Effective
Time.
“Company
Class A Common Stock” means, (i) prior to the adoption of the Amended Company Charter, if applicable, the common stock
of the Company, par value $0.01 per share, and (ii) after the adoption of the Amended Company Charter, if applicable, the Class A common
stock of the Company, par value $0.01 per share, in accordance with the Amended Company Charter.
“Company
Class B Common Stock” means, if the Amended Company Charter is adopted and approved the by the Company Special Committee
and the High Vote Company Stockholder Approval, and subject to the terms as agreed to by the Company Special Committee and the Company
Founders, the Class B common stock of the Company, par value $0.01 per share, which shall have the same exact rights and obligations
of shares of Company Class A Common Stock, except that each share of Company Class B Common Stock shall be entitled to a number of votes
per share equal to ten (10) or such other number in excess of one (1) vote as agreed by the Company Special Committee and the Company
Founders, if any.
“Company
Common Stock” means the Company Class A Common Stock and the Company Class B Common Stock, including any Earnout Shares.
Any reference in this Agreement to the Company Common Stock prior to the adoption of the Amended Company Charter, if applicable, shall
mean the Company Class A Common Stock.
“Company
Confidential Information” means all confidential or proprietary documents and information concerning the Company or any
of their respective Representatives, furnished in connection with this Agreement or the transactions contemplated hereby; provided,
however, that Company Confidential Information shall not include any information which, (i) at the time of disclosure by the Purchaser
or its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (ii) at the time of the
disclosure by the Company or its Representatives to the Purchaser or its Representatives was previously known by such receiving party
without violation of Law or any confidentiality obligation by the Person receiving such Company Confidential Information.
“Company
Convertible Securities” means, collectively, any options, warrants or rights to subscribe for or purchase any capital stock
of the Company or securities convertible into or exchangeable for, or that otherwise confer on the holder any right to acquire any capital
stock of the Company.
“Company
Founder” means each of Christopher Jones, Steve Johnson, and David Ashby.
“Company
Option” means an option (whether vested or unvested) to purchase Company Common Stock that was granted by the Company’s
board of directors.
“Company
Preferred Stock” means the preferred stock, par value $0.01 per share, of the Company.
“Company
Securities” means, collectively, the Company Common Stock, Company Preferred Stock, the Company Options and any other Company
Convertible Securities.
“Company
Stockholders” means, collectively, the holders of Company Common Stock.
“Company
Transaction Expenses” means all fees and expenses 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 change in control bonus, transaction bonus, retention bonus, termination or severance payment or payment relating
to terminated options, warrants or other equity appreciation, phantom equity, profit participation or similar rights, in any case, to
be made to any current or former employee, independent contractor, director or officer of the Company at or after the Closing pursuant
to any agreement to which the Company is a party prior to the Closing which become payable (including if subject to continued employment)
as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby and (iii) any sales, use,
real property transfer, stamp, stock transfer or other similar transfer Taxes imposed on Purchaser, Merger Sub or the Company in connection
with the Merger or the other transactions contemplated by this Agreement.
“Consent”
means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with any Governmental Authority
or any other Person.
“Contracts”
means all contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses
(and all other contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments
or obligations of any kind, written or oral (including any amendments and other modifications thereto).
“Control”
of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by contract, or otherwise. “Controlled”, “Controlling”
and “under common Control with” have correlative meanings. Without limiting the foregoing a Person (the “Controlled
Person”) shall be deemed Controlled by (a) any other Person (i) owning beneficially, as meant in Rule 13d-3 under the Exchange
Act, securities entitling such Person to cast ten percent (10%) or more of the votes for election of directors or equivalent governing
authority of the Controlled Person or (ii) entitled to be allocated or receive ten percent (10%) or more of the profits, losses, or distributions
of the Controlled Person; (b) an officer, director, general partner, partner (other than a limited partner), manager, or member (other
than a member having no management authority that is not a Person described in clause (a) above) of the Controlled Person; or (c) a spouse,
parent, lineal descendant, sibling, aunt, uncle, niece, nephew, mother-in-law, father-in-law, sister-in-law, or brother-in-law of an
Affiliate of the Controlled Person or a trust for the benefit of an Affiliate of the Controlled Person or of which an Affiliate of the
Controlled Person is a trustee.
“Copyrights”
means any works of authorship, mask works and all copyrights therein, including all renewals and extensions, copyright registrations
and applications for registration and renewal, and non-registered copyrights.
“Environmental
Law” means any Law in any way relating to (a) the protection of human health and safety, (b) the protection, preservation
or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply,
surface land, subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use, storage, recycling,
treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Materials, including
the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the
Federal Water Pollution Control Act, 33 U.S.C. Section 1151 et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq.,
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 111 et seq., Occupational Safety and Health Act, 29 U.S.C.
Section 651 et seq. (to the extent it relates to exposure to Hazardous Substances), the Asbestos Hazard Emergency Response Act,
15 U.S.C. Section 2601 et seq., the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., the Oil Pollution Act of 1990
and analogous state acts.
“Environmental
Liabilities” means all liabilities, monetary obligations, losses, damages, punitive damages, consequential damages, treble
damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs
of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, or
Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action.
“ERISA”
means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Fraud
Claim” means any claim based in whole or in part upon fraud, willful misconduct or intentional misrepresentation.
“Fully-Diluted
Company Shares” means the total number of issued and outstanding shares of Company Common Stock, treating all outstanding
in-the-money Company Options as fully vested and as if the Company Option had been exercised as of the Effective Time, but excluding
Company Securities described in Section 1.8(b).”
“GAAP”
means generally accepted accounting principles as in effect in the United States of America.
“Governmental
Authority” means any federal, state, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality,
department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving
panel or body.
“Hazardous
Material” means any waste, gas, liquid or other substance or material that is defined, listed or designated as a “hazardous
substance”, “pollutant”, “contaminant”, “hazardous waste”, “regulated substance”,
“hazardous chemical”, or “toxic chemical” (or by any similar term) under any Environmental Law, including petroleum
and its by-products, asbestos, polychlorinated biphenyls, radon, mold, and urea formaldehyde insulation.
“In-the-Money
Company Option” means a Company Option with an exercise price less than the Purchaser Share Price.
“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.
“Intellectual
Property” means all of the following as they exist in any jurisdiction throughout the world: Patents, Trademarks, Copyrights,
Trade Secrets, Internet Assets, Software and other intellectual property, and all licenses, sublicenses and other agreements or permissions
related to the preceding property.
“Internet
Assets” means any and all domain name registrations, web sites and web addresses and applications for registration therefor.
“IPO”
means the initial public offering of Purchaser Public Units pursuant to the IPO Prospectus.
“IPO
Prospectus” means the final prospectus of the Purchaser, dated as of October 26, 2021, and filed with the SEC on October
28, 2021 (File Nos. 333-259500 and 333-260515).
“IPO
Underwriter” means I-Bankers Securities, Inc.
“IRS”
means the U.S. Internal Revenue Service (or any successor Governmental Authority).
“Knowledge”
means, with respect to (i) the Company, the actual knowledge of Christopher Jones, David Ashby, Steve Johnson, Brenner Adams, Lindsay
Jones and Shaun Limbers, after reasonable inquiry or (ii) any other Party, (A) if an entity, the actual knowledge of its directors and
executive officers, after reasonable inquiry, or (B) if a natural person, the actual knowledge of such Party after reasonable inquiry.
“Law”
means any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict,
decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that
is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the
authority of any Governmental Authority.
“Liabilities”
means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether absolute, accrued, contingent or otherwise,
whether known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required
to be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards), including Tax liabilities due or
to become due.
“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.
“Material
Adverse Effect” means, with respect to any specified Person, any fact, event, occurrence, change or effect that has had,
or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (a) the business, assets, Liabilities,
results of operations, prospects or condition (financial or otherwise) of such Person and its Subsidiaries, taken as a whole, or (b)
the ability of such Person or any of its Subsidiaries on a timely basis to consummate the transactions contemplated by this Agreement
or the Ancillary Documents to which it is a party or bound or to perform its obligations hereunder or thereunder; provided, however,
that for purposes of clause (a) above, any changes or effects directly or indirectly attributable to, resulting from, relating to or
arising out of the following (by themselves or when aggregated with any other, changes or effects) shall not be deemed to be, constitute,
or be taken into account when determining whether there has or may, would or could have occurred a Material Adverse Effect: (i) general
changes in the financial or securities markets or general economic or political conditions in the country or region in which such Person
or any of its Subsidiaries do business; (ii) changes, conditions or effects that generally affect the industries in which such Person
or any of its Subsidiaries principally operate; (iii) changes in applicable Law or GAAP or other applicable accounting principles or
mandatory changes in the regulatory accounting requirements applicable to any industry in which such Person and its Subsidiaries principally
operate; (iv) conditions caused by acts of God, terrorism, war (whether or not declared) or natural disaster or pandemic; (v) any failure
in and of itself by such Person and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions
of financial performance for any period (provided that the underlying cause of any such failure may be considered in determining whether
a Material Adverse Effect has occurred or would reasonably be expected to occur to the extent not excluded by another exception herein)
and (vi), with respect to the Purchaser, the consummation and effects of the Redemption (or any redemption in connection with the Extension);
provided further, however, that any event, occurrence, fact, condition, or change referred to in clauses (i) - (iv) immediately
above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur
to the extent that such event, occurrence, fact, condition, or change has a disproportionate effect on such Person or any of its Subsidiaries
compared to other participants in the industries in which such Person or any of its Subsidiaries primarily conducts its businesses. Notwithstanding
the foregoing, with respect to the Purchaser, the amount of the Redemption (or any redemption in connection with the Extension, if any)
or the failure to obtain the Required Purchaser Stockholder Approval shall not be deemed to be a Material Adverse Effect on or with respect
to the Purchaser.
“Merger
Sub Common Stock” means the shares of common stock, par value $0.001 per share, of Merger Sub.
“Nasdaq”
means the Nasdaq Global Market.
“Net
Working Capital” means, as of the Reference Time, (i) all current assets of the Company (excluding, without duplication,
Closing Company Cash and deferred Tax assets), minus (ii) all current liabilities of the Company (excluding, without duplication, Indebtedness,
unpaid Company Transaction Expenses and deferred Tax Liabilities), as determined in accordance with the Accounting Principles; provided,
that, for purposes of this definition, whether or not the following is consistent with the Accounting Principles, “current assets”
will exclude any receivable from a Company Stockholder.
“NRS”
means the Nevada Revised Statutes, as amended and in effect from time to time.
“Order”
means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action
that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational
Documents” means, with respect to any Person that is an entity, its certificate of incorporation or formation, bylaws,
operating agreement, memorandum and articles of association or similar organizational documents, in each case, as amended.
“Patents”
means any patents, patent applications and the inventions, designs and improvements described and claimed therein, patentable inventions,
and other patent rights (including any divisionals, provisionals, continuations, continuations-in-part, substitutions, or reissues thereof,
whether or not patents are issued on any such applications and whether or not any such applications are amended, modified, withdrawn,
or refiled).
“PCAOB”
means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“Per
Share Price” means an amount equal to (i) the Adjusted Merger Consideration, divided by (ii) the Fully-Diluted Company
Shares.
“Purchaser
Share Price” means $10.00 per share (as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations
and the like after the Closing).
“Permits”
means all federal, state, local or foreign or other third-party permits, grants, easements, consents, approvals, authorizations, exemptions,
licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations,
ratings, registrations, qualifications or orders of any Governmental Authority or any other Person.
“Permitted
Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not delinquent
or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto,
(b) other Liens imposed by operation of Law arising in the ordinary course of business for amounts which are not due and payable and
as would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property
subject thereto, (c) Liens incurred or deposits made in the ordinary course of business in connection with social security, (d) Liens
on goods in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business, or (v)
Liens arising under this Agreement or any Ancillary Document.
“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.
“Personal
Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant,
parts and other tangible personal property.
“Pro
Rata Share” means with respect to each Company Stockholder, a fraction expressed a percentage equal (i) the numerator of
which shall be the total number of shares of Company Securities (on an as converted to common stock basis) held by the Company Stockholder
and (ii) the denominator of which shall be the total number of shares of Common Securities (on an as converted to common stock basis)
that are issued and outstanding.
“Purchaser
Class A Common Stock” means the shares of Class A common stock, par value $0.0001 per share, of the Purchaser.
“Purchaser
Class B Common Stock” means (i) prior to the Closing the shares of Class B common stock, par value $0.0001 per share, of
the Purchaser and (ii) if the Amended Company Charter is adopted and approved by the Company Special Committee and the High Vote Company
Stockholder Approval, and subject to the terms as agreed to by the Company Special Committee and the Company Founders, then, after the
adoption of the Amended Purchaser Charter at the Closing, the Class B common stock of Purchaser, par value $0.0001 per share, in accordance
with the Amended Purchaser Charter, which shall have the same exact rights and obligations of shares of Purchaser Class A Common Stock,
except that each share of Purchaser Class B Common Stock shall be entitled to a number of votes per share equal to the number of votes
per share as the Company Class B Common Stock.
“Purchaser
Common Stock” means the shares of Purchaser Class A Common Stock and Purchaser Class B Common Stock, collectively.
“Purchaser
Confidential Information” means all confidential or proprietary documents and information concerning the Purchaser or any
of its Representatives; provided, however, that Purchaser Confidential Information shall not include any information which, (i)
at the time of disclosure by the Company, the Seller Representative or any of their respective Representatives, is generally available
publicly and was not disclosed in breach of this Agreement or (ii) at the time of the disclosure by the Purchaser or its Representatives
to the Company, the Seller Representative or any of their respective Representatives, was previously known by such receiving party without
violation of Law or any confidentiality obligation by the Person receiving such Purchaser Confidential Information. For the avoidance
of doubt, from and after the Closing, Purchaser Confidential Information will include the confidential or proprietary information of
the Company.
“Purchaser
Preferred Stock” means shares of preferred stock, par value $0.0001 per share, of Purchaser.
“Purchaser
Private Right” means one right that was included as part of each Purchaser Private Unit entitling the holder thereof to
receive one-tenth (1/10) of one (1) share of Purchaser Class A Common Stock upon the consummation by Purchaser of its Business Combination.
“Purchaser
Private Units” means the units issued by Purchaser in a private placement to the Sponsor at the time of the consummation
of the IPO consisting of one (1) share of Purchaser Class A Common Stock Class and one (1) Purchaser Private Right.
“Purchaser
Public Right” means one right that was included as part of each Purchaser Public Unit entitling the holder thereof to receive
one-tenth (1/10) of one (1) share of Purchaser Class A Common Stock upon the consummation by Purchaser of its Business Combination.
“Purchaser
Public Units” means the units issued in the IPO (including overallotment units acquired by Purchaser’s underwriter)
consisting of one (1) share of Purchaser Class A Common Stock and one (1) Purchaser Public Right
“Purchaser
Securities” means the Purchaser Units, the Purchaser Common Stock, the Purchaser Preferred Stock and the Representative
Warrants, collectively.
“Purchaser
Transaction Expenses” means all fees and expenses of the Purchaser 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 Purchaser, and (ii) any change in control bonus, transaction bonus, retention bonus, termination or severance payment or payment
relating to terminated options, warrants or other equity appreciation, phantom equity, profit participation or similar rights, in any
case, to be made to any current or former employee, independent contractor, director or officer of the Purchaser at or after the Closing
pursuant to any agreement to which the Purchaser is a party prior to the Closing which become payable (including if subject to continued
employment) as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby.
“Purchaser
Units” means the Purchaser Private Units and Purchaser Public Units, collectively.
“Qualified
Franchise Location” means a TruGolf branded commercial facility with at least three fully operational golf simulators and
which at the time of determination is open to the general public.
“Representative
Warrants” means the warrants issued to the IPO Underwriter, in connection with its services as the representative of the
underwriters for the IPO, entitling the holder thereof to purchase one (1) share of Purchaser Class A Common Stock per warrant at a purchase
price of $12.00 per share.
“Reference
Time” means the close of business of the Company on the Closing Date (but without giving effect to the transactions contemplated
by this Agreement, including any payments by Purchaser hereunder to occur at the Closing, but treating any obligations in respect of
Indebtedness, Company Transaction Expenses or other liabilities that are contingent upon the consummation of the Closing as currently
due and owing without contingency as of the Reference Time).
“Release”
means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the environment.
“Remedial
Action” means all actions required by Environmental Laws to (i) clean up, remove, treat, or in any other way address any
Hazardous Material, (ii) prevent the Release of any Hazardous Material so it does not endanger or threaten to endanger public health
or welfare or the environment, (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care, or (iv) correct
a condition of noncompliance with Environmental Laws.
“Representatives”
means, as to any Person, such Person’s Affiliates and the respective managers, directors, officers, employees, independent contractors,
consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person
or its Affiliates.
“SEC”
means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Securities
Act” means the Securities Act of 1933, as amended.
“Significant
Company Holder” means each Company Founder, Brenner Adams, and Nathan Larsen.
“Software”
means any computer software programs, including all source code, object code, and documentation related thereto and all software modules,
tools and databases.
“SOX”
means the U.S. Sarbanes-Oxley Act of 2002, as amended.
“Sponsor”
means Bright Vision Sponsor LLC, a Delaware limited liability company.
“Subsidiary”
means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one
or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity,
a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly,
by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed
to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated
a majority of partnership, association or other business entity gains or losses or will be or control the managing director, managing
member, general partner or other managing Person of such partnership, association or other business entity. A Subsidiary of a Person
will also include any variable interest entity which is consolidated with such Person under applicable accounting rules.
“Target
Net Working Capital Amount” means an amount equal to One Million Dollars ($1,000,000).
“Tax
Return” means any return, declaration, report, claim for refund, information return or other documents (including any related
or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or
collection of any Taxes or the administration of any Laws or administrative requirements relating to any Taxes.
“Taxes”
means (a) all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added,
ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and
related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property,
windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever,
together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment
of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for
any period or otherwise through operation of law and (c) any Liability for the payment of amounts described in clauses (a) or (b) as
a result of any tax sharing, tax group, tax indemnity or tax allocation agreement with any other Person (other than an agreement entered
into in the ordinary course of business and not primarily related to Taxes).
“Trade
Secrets” means any trade secrets, confidential business information, concepts, ideas, designs, research or development
information, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering
drawings, methods, know-how, data, mask works, discoveries, inventions, modifications, extensions, improvements, and other proprietary
rights (whether or not patentable or subject to copyright, trademark, or trade secret protection).
“Trademarks”
means any trademarks, service marks, trade dress, trade names, brand names, internet domain names, designs, logos, or corporate names
(including, in each case, the goodwill associated therewith), whether registered or unregistered, and all registrations and applications
for registration and renewal thereof.
“Trading
Day” means any day on which shares of Purchaser Common Stock are actually traded on the principal securities exchange or
securities market on which the Purchaser Common Stock are then traded.
“Trust
Account” means the trust account established by Purchaser with the proceeds from the IPO pursuant to the Trust Agreement
in accordance with the IPO Prospectus.
“Trust
Agreement” means that certain Investment Management Trust Agreement, dated as of October 26, 2021, as it may be amended,
by and between the Purchaser and the Trustee, as well as any other agreements entered into related to or governing the Trust Account.
“Trustee”
means American Stock Transfer & Trust Company, LLC, in its capacity as trustee under the Trust Agreement.
“VWAP”
means, for any security as of any date(s), the dollar volume-weighted average price for such security on the principal securities exchange
or securities market on which such security is then traded during the period beginning at 9:30:01 a.m., New York time, and ending at
4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing
does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board
for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported
by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of
the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported by OTC Markets
Group Inc. If the VWAP cannot be calculated for such security on such date(s) on any of the foregoing bases, the VWAP of such security
on such date(s) shall be the fair market value as determined reasonably and in good faith by a majority of the disinterested independent
directors of the board of directors (or equivalent governing body) of the applicable issuer. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.2 Section
References. The following capitalized terms, as used in this Agreement, have the respective meanings given to them in the Section
as set forth below adjacent to such terms:
Term |
|
Section |
|
Term |
|
Section |
2024 Filing Date |
|
1.13(c)(i)(B) |
|
Antitrust Laws |
|
5.9(b) |
2024 Revenue |
|
1.13(c)(i)(A) |
|
Articles of Merger |
|
1.2 |
2025 Filing Date |
|
1.13(c)(ii)(B) |
|
Assumed Option |
|
1.8 |
2025 Revenue |
|
1.13(c)(ii)(A) |
|
Audited Company Financials |
|
4.7(a) |
2026 Filing Date |
|
1.13(c)(iii)(B) |
|
Balance Sheet Date |
|
4.7(a) |
2026 Revenue |
|
1.13(c)(iii)(A) |
|
Business Combination |
|
8.1 |
AAA Procedures |
|
9.6 |
|
CFO |
|
1.12(a) |
Accounts Receivable |
|
4.7(f) |
|
Class B Share Exchange |
|
5 22 |
Acquisition Proposal |
|
5.6(a) |
|
Closing |
|
2.1 |
Act |
|
Recitals |
|
Closing Date |
|
2.1 |
Adjustment Amount |
|
1.12(d) |
|
Closing Filing |
|
5.14(b) |
Agreement |
|
Preamble |
|
Closing Press Release |
|
5.14(b) |
Alternative Transaction |
|
5.6(a) |
|
Closing Statement |
|
1.12(a) |
Amended Company Charter |
|
5.22 |
|
Company |
|
Preamble |
Company
Benefit Plan |
|
4.19(a) |
|
Lost
Certificate Affidavit |
|
1.9(d) |
Company
Certificates |
|
1.9(a) |
|
Merger
|
|
Recitals |
Company
Directors |
|
5.17(a) |
|
Merger
Consideration |
|
1.7 |
Company
Disclosure Schedules |
|
Article
IV |
|
Merger
Sub |
|
Preamble |
Company
Financials |
|
4.7(a) |
|
Milestone
|
|
1.13(c)(iii)(C) |
Company
IP |
|
4.13(d) |
|
Milestone
Statement |
|
1.13(d)(ii)) |
Company
IP Licenses |
|
4.13(a) |
|
Milestone
Year |
|
1.13(a) |
Company
Material Contracts |
|
4.12(a) |
|
New
Employment Agreements |
|
5.21 |
Company
Permits |
|
4.10 |
|
Non-Competition
Agreement |
|
Recitals |
Company
Personal Property Leases |
|
4.16 |
|
Objection
Statement |
|
1.12(b) |
Company
Real Property Leases |
|
4.14(a) |
|
OFAC
|
|
3.19(c) |
Company
Registered IP |
|
4.13(a) |
|
Off-the-Shelf
Software |
|
4.13(a) |
Company
Special Committee |
|
5.22 |
|
Original
Business Combination Agreement |
|
Recitals |
Company
Special Meeting |
|
5.13 |
|
Outbound
IP License |
|
4.13(c) |
Conversion
Ratio |
|
1.7 |
|
Outside
Date |
|
7.1(b) |
D&O
Indemnified Persons |
|
5.18(a) |
|
Party(ies)
|
|
Preamble |
D&O
Tail Insurance |
|
5.18(b) |
|
PIPE
Investment |
|
5.20 |
DCGL
|
|
Recitals |
|
Post-Closing
Purchaser Board |
|
5.17(a) |
Dispute
|
|
9.6 |
|
Price
Milestone |
|
1.13(c)(iii)(B) |
Dissenting
Shares |
|
1.14 |
|
Price
Measurement Period |
|
1.13(c)(iii)(B) |
Dissenting
Stockholder |
|
1.14 |
|
Price
Statement |
|
1.13(d)(i) |
Earnout
Shares |
|
1.13(a) |
|
Proxy
Statement |
|
5.12(a) |
Effective
Time |
|
1.2 |
|
Public
Certifications |
|
3.6(a) |
EGS
|
|
2.1 |
|
Public
Stockholders |
|
8.1 |
Enforceability
Exceptions |
|
3.2 |
|
Purchaser
|
|
Preamble |
Environmental
Permits |
|
4.20(a) |
|
Purchaser
Directors |
|
5.17(a) |
Estimated
Closing Statement |
|
1.11 |
|
Purchaser
Disclosure Schedules |
|
Article
III |
Exchange
Agent |
|
1.9(a) |
|
Purchaser
Financials |
|
3.6(b) |
Expenses
|
|
7.3 |
|
Purchaser
Material Contract |
|
3.13(a) |
Extension
|
|
5.3(a) |
|
Purchaser
Representative |
|
Preamble |
Extension
Expenses |
|
5.3(a)(iv) |
|
Purchaser
Representative Documents |
|
9.16(a) |
Term |
|
Section |
|
Term |
|
Section |
Federal
Securities Laws |
|
5.7 |
|
Purchaser
Stockholder Approval Matters |
|
5.12(a) |
Filing
Date |
|
1.13(c)(iii)(B) |
|
|
|
|
First
Tranche |
|
1.13(c)(i) |
|
Purchaser
Special Meeting |
|
5.12(a) |
First
Tranche Franchise Milestone |
|
1.13(c)(i)(C) |
|
Redemption
|
|
5.12(a) |
First
Tranche Price Milestone |
|
1.13(c)(i)(B) |
|
Registration
Statement |
|
5.12(a) |
First
Tranche Price Measurement Period |
|
1.13(c)(i)(B) |
|
Related
Person |
|
4.21 |
First
Tranche Revenue Milestone |
|
1.13(c)(i)(A) |
|
Released
Claims |
|
8.1 |
Franchise
Milestone |
|
1.13(c)(iii)(C) |
|
Representative
Party |
|
1.12(b) |
Gross
Revenues |
|
1.13(c)(i)(A) |
|
Required
Company Stockholder Approval |
|
7.2(b) |
Health
Plan |
|
4.19(h)4 7(a) |
|
Required
Purchaser Stockholder Approval |
|
6.1(a) |
High
Vote Company Stockholder Approval |
|
5.22 |
|
Resolution
Period |
|
9.6 |
Incentive
Plan |
|
5.12(a) |
|
|
|
|
Independent
Expert |
|
1.12(b) |
|
Revenue
Milestone |
|
1.13(c)(iii)(A) |
Independent
Expert Notice Date |
|
1.12(b) |
|
Revenue
and Franchise Statement |
|
1.13(d)(ii) |
Interim
Period |
|
5.1(a) |
|
SEC
Reports |
|
3.6(a) |
Letter
of Transmittal |
|
1.9(a) |
|
Second
Tranche |
|
1.13(c)(ii) |
Lock-Up
Agreement |
|
Recitals |
|
|
|
1.13(c)(ii)(C) |
Loss
|
|
9.16(b) |
|
Second
Tranche Franchise Milestone |
|
|
Second
Tranche Price Milestone |
|
1.13(c)(ii)(B) |
|
Surviving
Corporation |
|
1.1 |
Second
Tranche Price Measurement Period |
|
1.13(c)(ii)(B) |
|
Termination
Fee |
|
7.4 |
Second
Tranche Revenue Milestone |
|
1.13(c)(ii)(A) |
|
Third
Tranche |
|
1.13(c)(iii) |
Section
409A Plan |
|
4.19(k) |
|
Third
Tranche Franchise Milestone |
|
1.13(c)(iii)(C) |
Seller
Representative |
|
Preamble |
|
Third
Tranche Price Milestone |
|
1.13(c)(iii)(B) |
Seller
Representative Documents |
|
9.17(a) |
|
Third
Tranche Price Measurement Period |
|
1.13(c)(iii)(B) |
Signing
Filing |
|
5.14(b) |
|
Third
Tranche Revenue Milestone |
|
1.13(c)(iii)(A) |
Signing
Press Release |
|
5.14(b) |
|
Top
Customers |
|
4.24 |
SPAC
Accounting Changes |
|
3.6(a) |
|
Top
Suppliers |
|
4.24 |
Specified
Courts |
|
9.7 |
|
Transmittal
Documents |
|
1.9(b) |
Stockholder
Merger Consideration |
|
1.7 |
|
Voting
Agreements |
|
Recitals |
{REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS}
IN
WITNESS WHEREOF, each Party hereto has caused this Amended and Restated Agreement and Plan of Merger to be signed and delivered as of
the date first written above.
|
The
Purchaser: |
|
|
|
|
DEEP
MEDICINE ACQUISITION CORP. |
|
|
|
|
By:
|
/s/
Humphrey P. Polanen |
|
Name:
|
Humphrey
P. Polanen |
|
Title:
|
Chief
Executive Officer |
|
|
|
|
The
Purchaser Representative: |
|
|
|
|
BRIGHT
VISION SPONSOR LLC, solely in the capacity as the Purchaser Representative hereunder |
|
|
|
|
By:
|
/s/
Ke Li |
|
Name:
|
Ke
Li |
|
Title: |
Managing
Member |
|
|
|
|
Merger
Sub: |
|
|
|
|
DMAC
MERGER SUB INC. |
|
|
|
|
By:
|
/s/
Humphrey P. Polanen |
|
Name:
|
Humphrey
P. Polanen |
|
Title:
|
President |
|
|
|
|
The
Company: |
|
|
|
|
TRUGOLF,
INC. |
|
|
|
|
By:
|
/s/
Christopher Jones |
|
Name: |
Christopher
Jones |
|
Title:
|
Chief
Executive Officer |
|
|
|
|
The
Seller Representative: |
|
|
|
|
/s/
Christopher Jones |
|
Christopher
Jones, solely in the capacity as the Seller Representative hereunder |
v3.23.2
Cover
|
Jul. 21, 2023 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Jul. 21, 2023
|
Entity File Number |
001-40970
|
Entity Registrant Name |
Deep
Medicine Acquisition Corp.
|
Entity Central Index Key |
0001857086
|
Entity Tax Identification Number |
85-3269086
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
595
Madison Avenue
|
Entity Address, Address Line Two |
12th Floor
|
Entity Address, City or Town |
New
York
|
Entity Address, State or Province |
NY
|
Entity Address, Postal Zip Code |
10017
|
City Area Code |
(917)
|
Local Phone Number |
289-2776
|
Written Communications |
true
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Entity Emerging Growth Company |
true
|
Elected Not To Use the Extended Transition Period |
false
|
Class A Common Stock, par value $0.0001 per share |
|
Title of 12(b) Security |
Class
A Common Stock, par value $0.0001 per share
|
Trading Symbol |
DMAQ
|
Security Exchange Name |
NASDAQ
|
Rights, each exchangeable into one-tenth of one share of Class A Common Stock |
|
Title of 12(b) Security |
Rights,
each exchangeable into one-tenth of one share of Class A Common Stock
|
Trading Symbol |
DMAQR
|
Security Exchange Name |
NASDAQ
|
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Deep Medicine Acquisition (NASDAQ:DMAQ)
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Deep Medicine Acquisition (NASDAQ:DMAQ)
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From Oct 2023 to Oct 2024