UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
August 22, 2024 (August 21, 2024)
Inflection Point Acquisition Corp. II
(Exact name of registrant as specified in its charter)
| Cayman Islands |
|
001-41711 |
|
N/A |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
167 Madison Avenue Suite 205 #1017
New York, New York
(Address of principal executive offices, including
zip code)
Registrant’s telephone number, including
area code: (212) 476-6908
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☒ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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| ☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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| ☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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| ☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
| Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
| Units, each consisting of one Class A ordinary share, $0.0001 par value, and one-half of one redeemable warrant |
|
IPXXU |
|
The Nasdaq Stock Market LLC |
| |
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|
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| Class A ordinary shares, par value $0.0001 per share |
|
IPXX |
|
The Nasdaq Stock Market LLC |
| |
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| Warrants, each whole warrant exercisable for one Class A ordinary share at an exercise price of $11.50 per share |
|
IPXXW |
|
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
Business Combination Agreement
On August 21, 2024 (the “Signing Date”), Inflection
Point Acquisition Corp. II, a Cayman Islands exempted company (which shall migrate to and domesticate as a Delaware corporation prior
to the Closing (as defined below)) (“Inflection Point”), entered into a Business Combination Agreement (as it
may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Business Combination
Agreement”), by and among Inflection Point, USA Rare Earth, LLC, a Delaware limited liability company (“USARE”)
and IPXX Merger Sub, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of Inflection Point (“Merger
Sub”), pursuant to which, among other things and subject to the terms and conditions contained therein, Merger Sub will
merge with and into USARE (the “Merger”), with USARE continuing as the surviving company. The transactions contemplated
by the Business Combination Agreement are referred to herein as the “Business Combination.” Inflection Point,
USARE and Merger Sub are individually referred to herein as a “Party” and, collectively, the “Parties.”
The combined company’s business will continue to operate through USARE and its subsidiaries. In connection with the closing of the
Business Combination, Inflection Point will change its name to “USA Rare Earth, Inc.” (such company after the closing of the
Business Combination, “New USARE”).
The Business Combination Agreement and the transactions
contemplated thereby were approved by the board of directors of Inflection Point and the managers of USARE.
The Business Combination is expected to close
in the first quarter of 2025, subject to the receipt of the required approvals by Inflection Point’s shareholders and fulfilment
of other customary closing conditions.
The Domestication
Inflection Point will,
subject to obtaining the required shareholder approvals and at least one day prior to the date of the closing of the Business Combination
(the “Closing” and the date of the Closing, the “Closing Date”), change its jurisdiction
of incorporation by deregistering as a Cayman Islands exempted company and continuing and domesticating as a corporation incorporated
under the laws of the State of Delaware (the “Domestication”). At least one day prior to the Domestication,
Inflection Point will provide its public shareholders the opportunity to redeem their shares on the terms and conditions set forth in
the Business Combination Agreement and Inflection Point’s governing documents (the “Redemption”).
By virtue of the Domestication
and subject to the satisfaction or waiver of the conditions of the Business Combination Agreement, including approval of Inflection Point’s
shareholders: (i) immediately prior to the Domestication, pursuant to the Sponsor Support Agreement (as defined below) each of the then
issued and outstanding Class B ordinary shares of Inflection Point will convert automatically, on a one-for-one basis, into one (1) Class
A ordinary share, par value of $0.0001 per share, of Inflection Point (each a “Class A Ordinary Share”) (the
“Sponsor Share Conversion”); and (ii) in connection with the Domestication, (x) each then issued and outstanding
Class A Ordinary Share (that was not redeemed pursuant to the Redemption) shall convert automatically, on a one-for-one basis, into one
(1) share of common stock, par value $0.0001 per share, of Inflection Point (after the Domestication) (the “New USARE Common
Stock”); (y) each of the then issued and outstanding warrants representing the right to purchase one Class A Ordinary Share
shall convert automatically into a warrant to acquire one (1) share of New USARE Common Stock (each a “New USARE Warrant”);
and (z) each of the then issued and outstanding units of Inflection Point will be cancelled and each holder thereof will be entitled to
one share of New USARE Common Stock and one-half (1/2) of one New USARE Warrant.
The Merger and Consideration
Subject to, and in accordance
with the terms and conditions of the Business Combination Agreement, immediately prior to the effective time of the Merger (the “Effective
Time”), (i) each warrant to purchase Class C convertible preferred units of USARE (the “USARE Class C Convertible
Preferred Units”) or Class C-1 convertible preferred units of USARE (the “USARE Class C-1 Convertible Preferred
Units”) shall automatically be exercised on a cashless basis in full in accordance with its terms and (ii) immediately thereafter,
each then-issued and outstanding USARE Class C Convertible Preferred Unit and each then-issued and outstanding USARE Class C-1 Convertible
Preferred Unit (including each USARE Class C Convertible Preferred Unit and USARE Class C-1 Convertible Preferred Unit issued upon the
automatic exercise described in the preceding clause (i)) shall automatically convert into such number of Class B units of USARE (the “USARE
Class B Units”) into which such USARE Class C Convertible Preferred Unit or USARE Class C-1 Convertible Preferred Unit,
as applicable, is convertible in connection with the Merger pursuant to USARE’s Sixth Amended and Restated Operating Agreement,
as amended (the “USARE OA”).
Subject to, and in accordance
with the terms and conditions of the Business Combination Agreement, at the Effective Time:
| (i) | each unit of USARE that is owned by Inflection Point, Merger Sub or USARE (in treasury or otherwise) immediately
prior to the Effective Time (each an “Excluded Unit”) shall be cancelled and shall cease to exist and no consideration
shall be delivered in exchange therefore; |
| (ii) | each incentive unit
(the “USARE Incentive Units”) that is issued and outstanding immediately prior to the Effective Time (other
than Excluded Units) shall, by virtue of the occurrence of the Merger, (x) to the extent the holder of such USARE Incentive Unit is continuously
employed by or providing services to USARE from the Signing Date through the Effective Time, be automatically deemed to be fully vested,
(y) regardless of such employment or service status, be automatically deemed exchanged or converted (on a cashless basis) into a fraction
of one Class A unit of USARE (the “USARE Class A Units”) in accordance with the terms of such USARE Incentive
Unit, the USARE OA and the Second Amended and Restated USA Rare Earth, LLC Incentive Plan and each USARE Class A Unit issued or issuable
upon such deemed exchange or conversion shall be treated as being issued and outstanding immediately prior to the Effective Time; |
| |
(iii) |
each warrant to purchase units of USARE (excluding the USARE Class A Preferred Investor Warrants (as defined below)) (the “USARE Warrants”) that is outstanding and unexercised immediately prior to the Effective Time shall, by virtue of the occurrence of the Merger, automatically be exercised or deemed exercised on a cashless basis in full accordance with its terms immediately prior to the Effective Time, and each USARE Class A Unit or USARE Class B Unit issued or issuable upon such exercise shall be treated as being issued and outstanding immediately prior to the Effective Time; |
| (iv) | each USARE Class A Unit that is issued and outstanding immediately prior
to the Effective Time (including all USARE Class A Units outstanding or deemed outstanding (a) upon the deemed exchange or conversion
of the USARE Incentive Units and (b) upon the deemed exercise of the USARE Warrants, but excluding the Excluded Units) shall be cancelled
and converted into the right to receive a number of shares of New USARE Common Stock equal to the Exchange Ratio (as defined below) (the
“Per Unit Base Consideration”) and the right to receive, subject to the vesting conditions described below,
a number of shares of New USARE Common Stock equal to the Earn-out Exchange Ratio (the “Per Unit Earn-out Consideration”); |
| (v) | each USARE Class B Unit that is issued and outstanding immediately prior to the Effective Time (including
all USARE Class B Units outstanding or deemed outstanding upon the deemed exercise of the USARE Warrants, but excluding the Excluded Units)
shall be cancelled and converted into the right to receive the Per Unit Base Consideration and the Per Unit Earn-out Consideration; |
| |
(vi) |
each Class A-1 convertible preferred unit of USARE (the “USARE Class A-1 Convertible Preferred Units”) and each Class A-2 convertible preferred unit of USARE (the “USARE Class A-2 Convertible Preferred Units,” and together with the USARE Class A-1 Convertible Preferred Units, the “USARE Class A Convertible Preferred Units”) that is issued and outstanding immediately prior to the Effective Time (other than Excluded Units) shall be cancelled and converted into the right to receive one share of Series A Preferred Stock (as defined below); and |
| |
(vii) |
each USARE Class A Preferred Investor Warrant (as defined below) shall be cancelled and converted into the right to receive a Series A Preferred Investor Warrant (as defined below) exercisable for a number of shares of New USARE Common Stock equal to the product of (i) the aggregate number of USARE Class A Units that would be issued upon full exercise of such USARE Class A Preferred Investor Warrant (as defined below) multiplied by (ii) the Exchange Ratio (as defined below). |
Pursuant to the Business
Combination Agreement, the aggregate consideration to be paid in, or in connection with, the Merger in respect of the outstanding equity
securities of USARE (excluding the USARE Class A Convertible Preferred Units and the USARE Class A Preferred Investor Warrants (as defined
below)) will be (A) (i) the number of shares of New USARE Common Stock equal to the quotient of (a) (i) the $800,000,000 minus (ii) the
aggregate indebtedness of USARE and its direct and indirect subsidiaries as of immediately prior to the Effective Time (subject to certain
exceptions) divided by (b) the amount equal to the price at which each Class A Ordinary Share may be redeemed pursuant to the Redemption
in connection with the Domestication (collectively, the “Aggregate Base Consideration”) plus (B) subject to
the vesting and forfeiture effects of the Earn-out Exchange Ratio described below, up to 10,000,000 shares of New USARE Common Stock (the
“Aggregate Earn-out Consideration”). The Aggregate Earn-out Consideration is subject to certain customary adjustments
as described in the Business Combination Agreement. The “Exchange Ratio” shall be equal to the quotient of (A)
the Aggregate Base Consideration divided by the sum (without duplication) of the aggregate number of (i) USARE Class A Units that are
issued and outstanding immediately prior to the Effective Time, (ii) USARE Class B Units that are issued and outstanding immediately prior
to the Effective Time (including all USARE Class B Units issued upon conversion of all outstanding USARE Class C Convertible Preferred
Units and USARE Class C-1 Convertible Preferred Units), (iii) all USARE Class A Units and USARE Class B Units issuable upon full exercise
of all issued and outstanding USARE Warrants (calculated using the treasury method of accounting on a cashless exercise basis) and (iv)
all USARE Class A Units and USARE Class B Units issuable upon full exercise, exchange or conversion of all issued and outstanding USARE
Incentive Units (calculated using the treasury method of accounting on a cashless exercise basis) (such sum, the “USARE Fully
Diluted Capital”).
The “Earn-out
Exchange Ratio” shall be equal to the quotient of (A) the Aggregate Earn-out Consideration divided by (B) the USARE Fully
Diluted Capital. 50% of the Aggregate Earn-out Consideration shall vest and be issued if, during the five year period beginning on the
first anniversary of the Closing Date (the “Earnout Period”) the closing sale price of one share of New USARE
Common Stock as reported on the national securities exchange on which such shares are then listed is greater than or equal to $15.00 for
a period of at least twenty out of thirty consecutive Trading Days (as defined in the Business Combination Agreement). The remaining 50%
of the Aggregate Earn-out Consideration shall vest and be issued if, during the Earnout Period, the closing sale price of one share of
New USARE Common Stock as reported on the national securities exchange on which such shares are then listed is greater than or equal to
$20.00 for a period of at least twenty out of thirty consecutive trading days. The Aggregate Earn-out Consideration may also vest upon
a Change of Control (as defined in the Business Combination Agreement) pursuant to which New USARE or its shareholders have the right
to receive consideration if the implied value per share of New USARE Common Stock is equal to or above such price targets, with the amount
of such consideration dependent upon the implied per share value reaching the thresholds discussed above).
In connection with the Closing:
| i. | USARE and New USARE will enter into a Seventh Amended and Restated Limited Liability Company
Operating Agreement of USARE, to, among other things, admit New USARE as the managing member of USARE; and |
| ii. | Inflection Point will file with the
Secretary of State of the State of Delaware a Certificate of Designations of Preferences, Rights and Limitations of 12% Series
A Cumulative Convertible Preferred Stock Series A Preferred Stock (the “Series A Preferred Stock Certificate of Designation”)
which sets forth the rights, preferences and privileges of the Series A Preferred Stock (as defined
below). |
Governance
The Parties have agreed
to take all necessary action, including causing the current directors of Inflection Point to resign, so that effective at the Closing,
the board of directors of New USARE (the “New USARE Board”) will consist of seven individuals (appointed in
accordance with, and such that, as of the Closing, the New USARE Board shall comply with Nasdaq rules) to be determined by USARE and Inflection
Point (solely with respect to one director to be designated by Inflection Point). The New USARE Board shall be classified into three classes,
as nearly equal in size as possible, with the director to be designated by Inflection Point serving as a director in the first post-Closing
director class. The remaining directors will be designated by USARE prior to Closing.
Representations, Warranties and Covenants
The Business Combination Agreement contains customary
representations and warranties by the parties thereto, as more particularly set forth in the Business Combination Agreement. The Business
Combination Agreement also contains customary pre-Closing covenants of the parties, including the obligation of Inflection Point and USARE
and their respective subsidiaries to conduct their businesses in the ordinary course and to refrain from taking certain specified actions,
subject to certain exceptions, without the prior written consent of certain counterparties to the Business Combination Agreement.
USARE agreed to provide Inflection Point with
its audited financial statements for the year ended December 31, 2023, and its interim unaudited financial information for the six-month
periods ending June 30, 2024 and 2023, as soon as reasonable practicable following the Signing Date, but in no event later than October
31, 2024, and to provide any other audited or unaudited financial statements as required by applicable law to be included in the Registration
Statement (as defined below). Inflection Point agreed to, as promptly as reasonably practicable, take all actions necessary to obtain
an extension of its deadline to complete an initial business combination to the date that is one year after the Signing Date (the “Outside
Date”). At or prior to the Closing, Inflection Point and USARE, if requested, shall provide each initial director with a
customary director indemnification agreement, in form and substance reasonably acceptable to such director, Inflection Point and USARE.
Conditions to the Parties’ Obligations
to Consummate the Business Combination
Under the Business Combination Agreement, the
obligations of the Parties to consummate the Business Combination are subject to certain conditions, including (i) the requisite approval
by Inflection Point’s shareholders having been obtained; (ii) the absence of adverse laws, rules, regulations, judgments, decrees,
executive orders or awards making the Business Combination illegal or otherwise prohibiting their consummation; (iii) the registration
statement to be filed by Inflection Point in connection with the Business Combination (the “Registration Statement”)
having been declared effective by the U.S. Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “Securities Act”), no stop order suspending the effectiveness of the Registration
Statement being in effect, and no proceedings for purposes of suspending the effectiveness of the Registration Statement having been initiated
or threatened by the SEC; and (iv) the New USARE Common Stock having been conditionally approved for listing upon the Closing on Nasdaq,
subject to certain conditions and exceptions as described in the Business Combination Agreement.
The obligations of USARE to consummate the Business
Combination are further subject to additional conditions, including: (i) the truth and accuracy of the representations and warranties
of Inflection Point and Merger Sub, subject to the materiality standards contained in the Business Combination Agreement; (ii) material
compliance by Inflection Point and Merger Sub with their respective agreements and covenants under the Business Combination Agreement;
(iii) no Purchaser Material Adverse Effect (as defined in the Business Combination Agreement) having occurred; (iv) the Domestication
having been completed and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation
thereto having been delivered to the USARE; (v) Inflection Point having made the arrangements to have the proceeds remaining in the Trust
Account (after giving effect to the Redemption) available to Inflection Point at the Closing; (vi) the delivery to USARE of copies of
the executed Registration Rights Agreement (as defined below) and Sponsor Lock-up Agreement (as defined below), duly executed by Inflection
Point and the Sponsor; and (vii) Inflection Point (following the Domestication) having filed the Series A Preferred Stock Certificate
of Designation with the Secretary of State of the State of Delaware and all conditions precedent to the closing of the Series A Preferred
Stock Investment (as defined below) to be fulfilled by Inflection Point and certain related parties having been satisfied or waived in
writing, and the closing of the Series A Preferred Stock Investment (as defined below) having been scheduled to occur substantially concurrently
with the Closing; and (vii) receipt of a customary officer’s certificate of Inflection Point, certifying the satisfaction of the
conditions listed in clauses (i) through (iii) above.
The obligations of Inflection Point and Merger
Sub to consummate the Business Combination are further subject to additional conditions, including: (i) the truth and accuracy of the
representations and warranties of USARE, subject to the materiality standards contained in the Business Combination Agreement; (ii) material
compliance by USARE with its agreements and covenants under the Business Combination Agreement; (iii) no Company Material Adverse Effect
(as defined in the Business Combination Agreement) having occurred; and (iv) a customary officer’s certificate of USARE, certifying
the satisfaction of the conditions listed in clauses (i) through (iii) above.
Termination Rights
The Business Combination Agreement may be terminated under certain customary
and limited circumstances at any time prior to the Closing including, among others, (i) by mutual written consent of Inflection Point
and USARE; (ii) by USARE if the board of directors of Inflection Point modifies its recommendation to its shareholders that they vote
in favor of the Business Combination; (iii) by USARE if Inflection Point does not extend its deadline to complete an initial business
combination or does not obtain shareholder approval for the Business Combination by reason of the failure to obtain the required vote
of shareholders; (iv) by USARE or Inflection Point, if the requisite closing conditions set forth in the Business Combination have not
been satisfied or waived by the Outside Date (provided that solely with respect to USARE’s right to terminate pursuant to this provision,
the Outside Date shall be deemed to be automatically extended by one calendar day for every calendar day after October 31, 2024 that USARE’s
audited financial statements for the year ended December 31, 2023 or USARE’s interim unaudited financial statements for the six-month
periods ending June 30, 2024 and 2023 are not delivered); (v) by USARE or Inflection Point if a government authority of competent jurisdiction
shall have issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated
by the Business Combination Agreement, and such order or other action has become final and non-appealable; provided however, that this
right shall not be available if the failure by such party to comply with any provisions of the Business Combination Agreement has been
a substantial cause of, or substantially resulted in, such action by such governmental authority; (vi) by UASRE and Inflection Point if
there has been a breach by the opposite party of any of its representations, warranties, covenants or agreements contained in this Agreement,
or if any representation or warranty of such party shall have become untrue or inaccurate, in any case; (vii) by USARE or Inflection Point
if the opposing party fails to (x) consummate the Business Combination on or prior to the day when the Closing is required to occur, (y)
USARE or Inflection Point irrevocably confirmed in writing it is ready, willing and able to consummate the Closing and (z) the opposing
party fails to effect the Closing within five (5) business says following delivery of such confirmation.
A copy of the Business Combination Agreement
is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of
the Business Combination Agreement and the Business Combination does not purport to be complete and is qualified in its entirety by
reference to the full text of the Business Combination Agreement filed with this Current Report on Form 8-K. The Business
Combination Agreement is included to provide security holders with information regarding its terms. It is not intended to provide
any other factual information about Inflection Point, USARE, or Merger Sub. In particular, the assertions embodied in
representations and warranties by Inflection Point, USARE, and Merger Sub contained in the Business Combination Agreement are
subject to important qualifications and limitations agreed to by the Parties in connection with negotiating such agreement,
including being qualified by confidential information in the disclosure schedules provided by the Parties in connection with the
execution of the Business Combination Agreement, and are subject to standards of materiality applicable to the contracting Parties
that may differ from those applicable to security holders. The confidential disclosures contain information that modifies, qualifies
and creates exceptions to the representations and warranties set forth in the Business Combination Agreement. Moreover, certain
representations and warranties in the Business Combination Agreement were used for the purpose of allocating risk between the
Parties, rather than establishing matters as facts. Accordingly, security holders should not rely on the representations and
warranties in the Business Combination Agreement as characterizations of the actual state of facts about Inflection Point, USARE,
and Merger Sub. In addition, information concerning the subject matter of the representations and warranties may change after the date of
the Business Combination Agreement, which subsequent information may or may not be fully reflected in Inflection Point’s
public disclosures.
Sponsor Support Agreement
Concurrently with the execution of the Business
Combination Agreement, Inflection Point Holdings II LLC, a Delaware limited liability company (the “Sponsor”),
Inflection Point and USARE entered into a sponsor support agreement (the “Sponsor Support Agreement”), pursuant
to which, among other things, the Sponsor has agreed to (i) vote to adopt and approve the Business Combination Agreement and the other
documents contemplated therein and the transactions contemplated therein and (ii) forfeit 60,000 New USARE Warrants for every $1,000,000
by which (x) the gross proceeds at Closing from the Trust Account (as defined in the Business Combination Agreement) established by Inflection
Point in connection with its initial public offering (after giving effect to the Redemption) plus (y) the gross proceeds from the Class
A Preferred Unit Investment (as defined in the Business Combination Agreement), the Series A Preferred Stock Investment (as defined below)
and any PIPE Investment (as defined in the Business Combination Agreement) are below $50,000,000, up to a maximum of 1,500,000 New USARE
Warrants forfeited.
The foregoing description of the Sponsor Support
Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Sponsor Support Agreement,
a copy of which is included as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Member Support Agreement
Concurrently with the execution of the Business
Combination Agreement, Inflection Point, entered into a member support agreement (the “Member Support Agreement”)
with USARE and certain members of USARE (the “Supporting USARE Members”) pursuant to which each such Supporting
USARE Member has agreed to, among other things, support and vote in favor of the Business Combination Agreement, and the transactions
contemplated therein (including the Merger).
The foregoing description of the Member Support
Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Member Support Agreement,
a copy of which is included as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference.
Lock-Up Arrangements
Sponsor Lock-Up Agreement
At the Closing, the Sponsor will enter into a Lock-Up Agreement (the “Sponsor
Lock-Up Agreement”), pursuant to which the Sponsor and its permitted assigns will agree not to, prior to the date that is
six (6) months after the Closing Date (the “Initial Common Stock Lock-Up Period”), (i) sell, pledge, grant any
option to purchase or otherwise dispose of (a) any shares of New USARE Common Stock the Sponsor received upon conversion of its Class
A Ordinary Shares (following the Sponsor Share Conversion) in connection with the Domestication (the “Sponsor Lock-Up Shares”),
(ii) enter into any swap or other transfer arrangement in respect of the Sponsor Lock-Up Shares or (iii) take any other similar actions
(the actions specified in the foregoing clauses (i) through (iii), collectively, “Transfer” in each case, without
the prior written consent of the New USARE Board). The Sponsor and its permitted assigns will also agree not to, prior to the date that
is twelve (12) months after the Closing Date (the “Second Common Stock Lock-Up Period”), Transfer more than
50% of the Sponsor Lock-Up Shares in each case, without the prior written consent of the New USARE Board. In addition, the Sponsor will
agree to not Transfer any Warrants received upon conversion of private placement warrants in connection with the Domestication (or the
shares of New USARE Common Stock issuable upon exercise of such warrants), prior to the date that is 30 days after the Closing Date. The
Sponsor Lock-Up Agreement will provide for certain permitted transfers, including but not limited to, transfers to certain affiliates
or family members, transfers of shares acquired on the open market after the consummation of the Business Combination, subject to certain
conditions, or the exercise of certain stock options and warrants.
USARE Lock-Up Arrangement
In connection with the Domestication,
Inflection Point will adopt the bylaws of New USARE, pursuant to which the existing members of USARE (excluding the holders of the
USARE Class A Convertible Preferred Units and the USARE Class A Investor Warrants (as defined below), solely with respect to the New
USARE securities received in exchange for such USARE securities) (together with their permitted transferees, the “USARE
Lock-Up Holders”) will not be permitted, prior to the end of the Initial Common Stock Lock-Up Period, to Transfer any
shares of New USARE Common Stock that are or will be issued or are or will be issuable to such USARE Lock-Up Holders in connection
with the transactions contemplated by the Business Combination Agreement (the “USARE Lock-Up Shares” in each case, without the prior written consent of the New USARE Board).
Such bylaws will further provide that such USARE Lock-Up Holders will not be permitted to, prior to the end of the Second Common
Stock Lock-Up Period, Transfer more than 50% of the USARE Lock-Up Shares in each case, without the prior written consent of the New
USARE Board. The bylaws will provide for certain permitted transfers, including but not limited to, transfers to certain affiliates
or family members, transfers of shares acquired on the open market after the consummation of the Business Combination, subject to
certain conditions, or the exercise of certain stock options.
The foregoing descriptions of these lock-up
arrangements does not purport to be complete and is qualified in its entirety by reference to the full text of (i) the form of
Sponsor Lock-Up Agreement, a copy of which is included as Exhibit G to the Business Combination Agreement (attached as Exhibit 2.1
hereto), and the terms of which are incorporated herein by reference and (ii) the form of Bylaws, a copy of which is included as
Exhibit B to the Business Combination Agreement (attached as Exhibit 2.1 hereto), and the terms of which are incorporated herein by
reference.
Registration Rights Agreement
Concurrently with the Closing, New USARE,
the Sponsor, and other parties thereto will enter into a registration rights agreement (the “Registration Rights
Agreement”), pursuant to which, among other things, New USARE will agree that, promptly after the Closing Date, it
will file with the SEC (at New USARE’s sole cost and expense) a registration statement registering the resale of certain
securities held by or issuable to the parties thereto (the “Resale Registration Statement”), and New USARE
will use its reasonable best efforts to have the Resale Registration Statement declared effective as soon as reasonably practicable
after the filing thereof, and in any event within ninety (90) days after the Closing Date. Such holders will be entitled to
customary piggyback registration rights and demand registration rights.
The foregoing description of the Registration
Rights Agreement is qualified in its entirety by reference to the full text of the form of Registration Rights Agreement, a copy of which
is included as Exhibit F to the Business Combination Agreement (attached as Exhibit 2.1 hereto), to this Current Report on Form 8-K and
incorporated herein by reference.
Series A Preferred Stock Investment
In connection with the transactions contemplated
by the Business Combination Agreement, on the Signing Date, Inflection Point, USARE and Inflection Point Fund I, LP, an accredited investor
that is an affiliate of Inflection Point and the Sponsor (the “Series A Preferred Stock Investor”) entered into
a Securities Purchase Agreement (the “Series A SPA”). Pursuant to the Series A SPA, the Series A Preferred Stock
Investor has agreed, among other things, to purchase, at Closing, shares of New USARE’s 12% Series A Cumulative Convertible Preferred
Stock, par value $0.0001 per share, having the rights, preferences and privileges set forth in the Series A Preferred Stock Certificate
of Designation (such stock the “Series A Preferred Stock”) and a warrant to purchase a number of shares of New
USARE Common Stock equal to the amount of shares into which such shares of New USARE Common Stock underlying the Series A Preferred Stock
are initially convertible (a “Series A Preferred Investor Warrant”), for an aggregate purchase price of $9,117,648
(the “Series A Preferred Stock Investment”). Each share of Series A Preferred Stock will have a stated value
of $12.00 (the “Stated Value”).
In addition, pursuant to a Securities Purchase Agreement, dated as of August
21, 2024, by and among Inflection Point, Michael Blitzer (Inflection Point’s Chairman and Chief Executive Officer (“Mr.
Blitzer”)) and USARE, Inflection Point has agreed to issue at Closing, $1,250,000 in Stated Value of Series A Preferred
Stock to Mr. Blitzer exchange for his forgiveness of 50% of the then-outstanding balance of the convertible promissory note issued to
him by Inflection Point on August 13, 2024. This Securities Purchase Agreement is in substantially the form of the Series A SPA, subject
to appropriate changes to reflect that (i) the consideration to be paid by Mr. Blitzer is his forgiveness of 50% of the then-outstanding
balance of the convertible promissory note issued to him by Inflection Point on August 13, 2024 and (ii) Mr. Blitzer will not receive
a Series A Preferred Investor Warrant.
The Series A SPA includes customary representations
and warranties from USARE, Inflection Point and the Series A Preferred Stock Investor and customary closing conditions. The Series A SPA
also includes customary covenants and agreements related to transfer restrictions, SEC reports, material non-public information and indemnification.
The Series A Preferred Stock and New USARE Common Stock underlying any Series A Preferred Investor Warrants will be “Registrable
Securities” under the Registration Rights Agreement.
Dividends: The Series A Preferred Stock
will accrue dividends daily at the rate of 12% per annum of the Stated Value (if paid in kind), plus the amount of previously accrued
dividends paid in kind, or 10% per annum of the Stated Value (if paid in cash), plus the amount of previously accrued dividends paid in
kind. Such dividends will compound semi-annually.
Liquidation Preference: Upon any liquidation
or deemed liquidation event, the holders of Series A Preferred Stock will be entitled to receive out of the available proceeds, before
any distribution is made to holders of common stock or any other junior securities, an amount per share equal to the greater of (i) 100%
of the Accrued Value (as defined in the Series A Preferred Stock Certificate of Designation) or (ii) such amount per share as would have
been payable had all shares of Series A Preferred Stock been converted into New USARE Common Stock immediately prior to the liquidation
event. Thereafter, the holders of Series A Preferred Stock will be entitled to receive their pro-rata share, of the remaining available
proceeds available for distribution to stockholders, on an as-converted to common stock basis.
Voting: The Series A Preferred Stock
will vote together with the New USARE Common Stock as a single class, except as required by law and (ii) as noted below under
“Protective Provisions.” Each holder of Series A Preferred Stock shall be entitled to cast the number of votes equal to
the number of whole shares of New USARE Common Stock into which the shares of Series A Preferred Stock held by such holder are
convertible as of the record date for determining stockholders entitled to vote on such matter.
Protective Provisions: For as long as 20%
of the shares of Series A Preferred Stock issued as of the Closing are held by Inflection Point Asset Management LLC, and certain other
holders of Series A Preferred Stock and their respective affiliates, New USARE shall not, without the affirmative vote or action by written
consent of holders of more than 80% of the issued and outstanding shares of Series A Preferred Stock (the “Requisite Holders”),
take any of the following actions: (i) liquidate, dissolve or wind up the affairs of New USARE; (ii) amend, alter, or repeal any provision
of the Series A Preferred Stock Certificate of Designation or any similar document of New USARE in a manner adverse to the Series A Preferred
Stock; (iii) create or authorize the creation of or issue any other security convertible into or exercisable for any equity security unless
such security ranks junior to the Series A Preferred Stock with respect to its rights, preferences and privileges, or increase the authorized
number of shares of Series A Preferred Stock; (iv) purchase or redeem or pay any cash dividend on any capital stock ranking junior to
the Series A Preferred Stock, other than stock repurchased at cost from former employees and consultants in connection with the cessation
of their service; (v) enter into any transaction with an affiliate, other than the issuance of equity or awards to eligible participants
under New USARE’s incentive plan, equity plan or equity-based compensation plan, or with respect to employment, consulting or award
agreements with respect to executive officers of New USARE, in each case regardless of whether such person (or such person’s affiliates)
would be considered an affiliate of New USARE; or (vi) incur or guarantee any indebtedness, other than equipment leases or trade payables
incurred in the ordinary course of business, if the aggregate indebtedness of New USARE and its subsidiaries for borrowed money following
such action would exceed $5,000,000; provided, however, that the Series A Preferred Stock shall not be considered indebtedness for purposes
of this calculation.
Conversion: Each share of Series A
Preferred Stock will be convertible into New USARE Common Stock at any time at the option of the holder at rate equal to the Accrued
Value, divided by the then-applicable conversion price. The conversion price will initially be $12.00, subject to adjustments for
stock dividends, splits, combinations and similar events and customary anti-dilution adjustments, including with respect to future
issuances or sales of New USARE Common Stock at prices less than $10.00 per share. In addition, if the 20-day volume-weighted
average price of the New USARE Common Stock on the twenty-first trading day following the date that is six months after Closing Date
is less than the conversion price then in effect, the conversion price will be adjusted to the greater of (i) such volume weighted
average price and (ii) $7.50.
Put Rights: Unless prohibited by applicable
law governing distributions to stockholders, the Series A Preferred Stock shall be redeemable at the option of the Requisite Holders commencing
any time after the 5th anniversary of the Closing at a price equal to the Accrued Value.
Call Rights: Unless prohibited by applicable
law governing distributions to stockholders, the Series A Preferred Stock shall be redeemable at the option of New USARE commencing any
time (A) prior to the 1st anniversary of the Closing at a price equal to the 150% of the Accrued Value, (B) on or after the 1st anniversary
but prior to the 2nd anniversary of the Closing at a price equal to the 140% of the Accrued Value, (C) on or after the 2nd anniversary
of the Closing but prior to the 3rd anniversary of the Closing at a price equal to the 130% of the Accrued Value, (D) on or after the
3rd anniversary of the Closing but prior to the 4th anniversary of the Closing at a price equal to the 120% of the Accrued Value, (E)
on or after the 4th anniversary of the Closing but prior to the 5th anniversary of the Closing at a price equal to the 110% of the Accrued
Value, or (F) on or after the 5th anniversary of the Closing at a price equal to the 100% of the Accrued Value.
Series A Preferred Investor Warrants:
At the closing of the Series A Preferred Stock Investment, the Series A Preferred Stock Investor will receive a Series A Preferred
Investor Warrant to purchase that number of shares of New USARE Common Stock equal to 100% of the total number of shares of New
USARE Common Stock into which the Series A Preferred Stock purchased by such Series A Preferred Stock Investor is initially
convertible. The Series A Preferred Investor Warrants will be immediately exercisable upon issuance at Closing and will expire five
years from the date of Closing. The Series A Preferred Investor Warrants include customary cash and cashless exercise provisions.
Each Series A Preferred Investor Warrant is initially exercisable at $12.00 per share of New USARE Common Stock, subject to the same
anti-dilution and other adjustments as the Series A Preferred Stock.
As noted above, at the Effective Time (i) each
USARE Class A Convertible Preferred Unit that is issued and outstanding immediately prior to the Effective Time (other than Excluded Units)
shall be cancelled and converted into the right to receive one share of Series A Preferred Stock and (ii) each warrant to purchase USARE
Class A Units at $12.00 per USARE Class A Unit (each such warrant, a “USARE Class A Preferred Investor Warrant”)
shall be cancelled and converted into the right to receive a Series A Preferred Investor Warrant exercisable for a number of shares of
New USARE Common Stock equal to the product of (i) the aggregate number of USARE Class A Units that would be issued upon full exercise
of such USARE Class A Preferred Investor Warrant, multiplied by (ii) the Exchange Ratio.
The foregoing description of the Series A Preferred
Stock Investment, and the securities into which the USARE Class A Convertible Preferred Units and USARE Class A Preferred Investor Warrants
(as defined below) will convert in the Merger, is subject to and qualified in its entirety by reference to (i) the full text of the Series
A SPA, a copy of the form of which is included as Exhibit 10.3 to this Current Report on Form 8-K, (ii) the full text of the form of Series
A Preferred Stock Certificate of Designation, a copy of which is included as Exhibit D to the Business Combination Agreement (attached
as Exhibit 2.1 hereto) and Exhibit A to the Series A SPA (attached Exhibit 10.3 to this Current Report on Form 8-K), and (iii) the full
text of the form of Series A Preferred Investor Warrant, a copy of the form of which is included as Exhibit E to the Business Combination
Agreement (attached as Exhibit 2.1 hereto) and as Exhibit C to the Series A SPA (attached as Exhibit 10.3 to this Current Report on Form
8-K), and the terms of each is incorporated herein by reference.
Fee Reduction Agreement
Pursuant to that certain Underwriting Agreement
between Inflection Point and Cantor Fitzgerald & Co., as Representative of the several underwriters (“CF&CO”),
dated May 24, 2023 (as it may be amended from time to time, the “Underwriting Agreement”), Inflection Point
previously agreed to pay to CF&CO an aggregate cash amount of $13,100,000 as “deferred underwriting commissions” (the
“Original Deferred Fee”) upon the consummation of an initial business combination, as contemplated by the final
prospectus of Inflection Point, filed with the SEC (File No. 333- 271128), and dated May 24, 2024. Solely in connection with the Business
Combination, Inflection Point, CF&CO and USARE have entered into that certain fee reduction agreement, dated as of August 20, 2024
(the “Fee Reduction Agreement”), pursuant to which, upon consummation of the Business Combination, CF&CO
will accept, in lieu of such Original Deferred Fee: (i) either (at Inflection Point’s option) (A) a cash fee of $4,000,000 or (B)
(1) a cash fee of $2,000,000 plus (2) 400,000 shares of New USARE Common Stock, plus (ii) 2.0% of the amount by which the Total Capital
Raised (as defined in the Fee Reduction Agreement) exceeds $50,000,000. Additionally, solely if Inflection Point elects to pay the all-cash
fee discussed above, CF&CO will forfeit 1,650,000 Placement Warrants (as defined by the Fee Reduction Agreement).
The foregoing description of the Fee Reduction
Agreement is qualified in its entirety by reference to the full text of the Fee Reduction Agreement, a copy of which is attached as Exhibit
10.4 to this Current Report on Form 8-K and incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity
Securities.
The disclosure set forth
above in Item 1.01 of this Current Report on Form 8-K with respect to the issuance of shares of Inflection Point pursuant to the Business
Combination Agreement, the Series A SPA and the Securities Purchase Agreement with Mr. Blitzer is incorporated by reference herein. The
shares to be offered and sold in connection with the Series A SPA have not been registered under the Securities Act, in reliance upon
the exemption from registration provided by Section 4(a)(2) of the Securities Act. In addition, the shares of Series A Preferred Stock
to be offered and sold to Mr. Blitzer in connection with his Securities Purchase Agreement have not been registered under the Securities
Act, in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act.
Item 7.01 Regulation
FD Disclosure.
On August 22, 2024, Inflection
Point and USARE issued a joint press release announcing their entry into the Business Combination Agreement. The press release is furnished
hereto as Exhibit 99.1 and incorporated by reference into this Item 7.01.
Furnished as Exhibit
99.2 hereto and also incorporated into this Item 7.01 by reference is the investor presentation Inflection Point and USARE have prepared
for use in connection with the Business Combination.
The information in this
Item 7.01, including each of Exhibits 99.1 and 99.2, is being furnished pursuant to Item 7.01 and will not be deemed to be “filed”
for purposes of Section 18 of the Exchange Act, or otherwise be subject to the liabilities of that section, nor will it be deemed to be
incorporated by reference in any filing under the Securities Act or the Exchange Act, except as may be expressly set forth by specific
reference in such filing.
Item 8.01 Other Events.
In connection with the transactions contemplated
by the Business Combination Agreement, at the Signing Date, USARE and certain accredited investors, including certain funds related to
Inflection Point (Inflection Point Fund I, LP, Newtyn Partners, LP and Newtyn TE Partners, LP) (the “Class A Convertible Preferred
Unit Investors”) entered into Securities Purchase Agreements (the “Class A Convertible Preferred SPAs”).
Pursuant to the Class A Convertible Preferred SPAs, the Class A Convertible Preferred Unit Investors purchased (i) USARE Class A Convertible
Preferred Units and (ii) USARE Class A Preferred Investor Warrants for an aggregate purchase price of approximately $25 million.
In addition, pursuant to a Securities Purchase
Agreement in substantially the form of the Class A Convertible Preferred SPAs, dated as of August 21, 2024, by and between USARE and Mr.
Blitzer, USARE has agreed to issue 122,549 USARE Class A-2 Convertible Preferred Units and a USARE Class A Preferred Investor Warrant
to purchase up to 31,250 USARE Class A Units in exchange for Mr. Blitzer’s promise to forgive, at Closing, 50% of the then-outstanding
balance of the convertible promissory note issued to him by Inflection Point on August 13, 2024.
Additional Information
about the Business Combination and Where to Find It
The Business Combination will be submitted to the shareholders of Inflection
Point for their consideration. Inflection Point intends to file a registration statement on Form S-4 (the “Registration Statement”)
with the SEC, which will include a proxy statement/prospectus and certain other related documents, which will serve as both the proxy
statement to be distributed to Inflection Point’s shareholders in connection with Inflection Point’s solicitation for proxies
for the vote by Inflection Point’s shareholders in connection with the Business Combination and other matters to be described in
the Registration Statement, as well as the prospectus relating to the offer and sale of the securities to be issued (or deemed issued)
to Inflection Point’s securityholders and USARE’s equityholders in connection with the completion of the Business Combination.
After the Registration Statement is declared effective, Inflection Point will mail a definitive proxy statement and other relevant documents
to its shareholders as of the record date established for voting on the Business Combination. Inflection Point’s shareholders and
other interested persons are advised to read, once available, the Registration Statement, the preliminary proxy statement/prospectus included
in the Registration Statement and any amendments thereto and, once available, the definitive proxy statement/prospectus and documents
incorporated by reference therein filed in connection with the Business Combination, in connection with Inflection Point’s solicitation
of proxies for its extraordinary general meeting to be held to approve, among other things, the Business Combination, as well as other
documents filed with the SEC in connection with the Business Combination, as these documents will contain important information about
Inflection Point, USARE, and the Business Combination. Securityholders of Inflection Point and members of USARE may obtain a copy of the
preliminary or definitive proxy statement/prospectus, once available, as well as other documents filed by Inflection Point with the SEC
that will or may be incorporated by reference in the proxy statement/prospectus, without charge, at the SEC’s website located at
www.sec.gov or by directing a written request to Inflection Point at Inflection Point Acquisition Corp. II, 167 Madison Avenue Suite 205
#1017 New York, New York 10016.
Participants in the Solicitation
Inflection Point and its directors and executive
officers may be deemed participants in the solicitation of proxies from Inflection Point’s stockholders with respect to the Business
Combination. A list of the names of those directors and executive officers and a description of their interests in Inflection Point is
contained in the sections entitled “Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters”
and “Directors, Executive Officers and Corporate Governance — Conflicts of Interest” of Inflection Point’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 2, 2024, and which is available free of charge
at the SEC’s website at www.sec.gov and at the following URL: sec.gov/Archives/edgar/data/1970622/000121390024029041/ea0202401-10k_infle2.htm.
Additional information regarding the interests of such participants will be contained in the Registration Statement when available.
USARE’s directors and executive officers
may also be deemed to be participants in the solicitation of proxies from the stockholders of Inflection Point in connection with the
Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the Business
Combination will be included in the Registration Statement when available.
Forward-Looking Statements
This Current Report on Form 8-K includes “forward-looking statements”
within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995.
These forward-looking statements include, without limitation, statements regarding or similar to: estimates and forecasts of financial
and operational metrics; plans, goals, ambitions, targets, future business and operations, and projections regarding future mining capabilities,
operations, reserves, manufacturing capacity and plant performance; projections of market opportunity and market share; estimates and
projections of adjacent industry sector opportunities; USARE’s commercialization costs and timeline; USARE’s ability to timely
and effectively meet construction and mining timelines and scale its production and manufacturing processes; USARE’s ability to
maintain, protect, and enhance its intellectual property; development of favorable regulations and government demand, contracts, and incentives
affecting the markets in which USARE operates; USARE’s ability to receive and/or maintain the necessary permits and other government
approvals necessary to operate its business; the estimates with respect to the rare earth and critical element and mineral deposits in
the Round Top deposit; Inflection Point’s and USARE’s expectations with respect to future performance of USARE’s (and,
after the Business Combination, the combined company’s) business; the expected funding of the PIPE Investment and pre-funded investment,
to the extent they remain unfunded; anticipated financial impacts of the Business Combination; Inflection Point’s ability to obtain
an extension of its deadline to complete an initial business combination; the satisfaction of the closing conditions to the Business Combination;
and the timing of the completion of the Business Combination. For example, projections of future enterprise value, revenue, market share,
and other metrics are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “anticipate,”
“believe,” “continue” “estimate,” “expect,” “intend,” “may,” “potential,”
“predict,” “should,” or “will,” or the negatives of these terms or variations of them or similar terminology,
although not all forward-looking statements contain such identifying words.
These forward-looking statements are based upon
estimates and assumptions that, while considered reasonable by Inflection Point, USARE and their respective managements, as the case may
be, are inherently uncertain. These forward-looking statements are provided for illustrative purposes only and are not intended to serve
as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction, or a definitive statement of fact or probability.
Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances
are beyond the control of Inflection Point and USARE. Such forward-looking statements are subject to risks, uncertainties, and other factors
which could cause actual results to differ materially from those expressed or implied by such forward-looking statements. Factors that
may cause actual results to differ materially from current expectations include, but are not limited to: (1) changes in domestic and foreign
business, market, financial, political conditions, and in applicable laws and regulations, (2) the occurrence of any event, change or
other circumstances that could give rise to the termination definitive agreements and any negotiations with respect to the Business Combination;
(3) the outcome of any legal proceedings that may be instituted against Inflection Point, USARE, the combined company, or others; (4)
the inability to complete the Business Combination due to the failure to obtain approval of the stockholders of Inflection Point to extend
the deadline for Inflection Point to complete an initial business combination, for the Business Combination or to satisfy other conditions
to closing; (5) changes to the proposed structure of the Business Combination that may be required or appropriate as a result of applicable
laws or regulations; (6) the ability to meet stock exchange listing standards following the consummation of the Business Combination;
(7) the risk that the Business Combination disrupts current plans and operations of Inflection Point or USARE as a result of the announcement
and consummation of the Business Combination; (8) the ability to recognize the anticipated benefits of the Business Combination, which
may be affected by, among other things: competition, the ability of the combined company to grow and manage growth profitably, the ability
of the combined company to build or maintain relationships with customers and suppliers and retain its management and key employees, the
supply and demand for rare earth minerals, the timing and amount of future production, costs of production, capital expenditures and requirements
for additional capital, timing of future cash flow provided by operating activities, if any, uncertainty in any mineral resource estimates,
uncertainty in any geological, metallurgical, and geotechnical studies and opinions, and transportation risks; (9) costs related to the
Business Combination; (10) the possibility that USARE or the combined company may be adversely affected by other economic, business, and/or
competitive factors; (11) estimates of expenses and profitability and underlying assumptions with respect to stockholder redemptions and
purchase price and other adjustments; and (12) other risks and uncertainties set forth in the section entitled “Risk Factors”
and “Cautionary Note Regarding Forward-Looking Statements” in Inflection Point’s final prospectus relating to its initial
public offering dated May 24, 2023, and in subsequent Inflection Point filings with the SEC, including the Registration Statement (as
defined below) relating to the Business Combination expected to be filed by Inflection Point, and periodic Exchange Act reports filed
with the SEC such as its Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K.
You should carefully consider the foregoing risk
factors and the other risks and uncertainties which will be more fully described in the “Risk Factors” section of the Registration
Statement and other documents filed by Inflection Point from time to time with the SEC. If any of these risks materialize or USARE’s
assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There
may be additional risks that neither Inflection Point nor USARE presently know or that they currently believe are immaterial that could
also cause actual results to differ from contained in the forward-looking statements. In addition, forward-looking statements reflect
Inflection Point and USARE’s expectations, plans, or forecasts of future events and views as of the date of this Current Report
on Form 8-K. Nothing in this communication should be regarded as a representation by any person that the forward-looking statements set
forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. These forward-looking
statements speak only as of the date of this Current Report on Form 8-K. Inflection Point, USARE, and their respective representatives
and affiliates specifically disclaim any obligation to, and do not intend to, update or revise these forward-looking statements, whether
as a result of new information, future events, or otherwise. Accordingly, these forward-looking statements should not be relied upon as
representing Inflection Point’s, USARE’s, or any of their respective representatives or affiliates’ assessments as of
any date subsequent to the date of this Current Report on Form 8-K, and therefore undue reliance should not be placed upon the forward-looking
statements. This Current Report on Form 8-K contains preliminary information only, is subject to change at any time, and is not, and should
not be assumed to be, complete or constitute all of the information necessary to adequately make an informed decision regarding any potential
investment in connection with the Business Combination.
No Offer or Solicitation
This Current Report on Form 8-K and the exhibits
hereto do not constitute an offer to sell or exchange, or a solicitation of an offer to buy or exchange, or a recommendation to purchase,
any securities in any jurisdiction, or the solicitation of any proxy, vote, consent or approval in any jurisdiction with respect to any
securities or in connection with the Business Combination. There shall not be any offer, sale or exchange of any securities of USARE or
Inflection Point in any jurisdiction where, or to any person to whom, such offer, sale or exchange may be unlawful under the laws of such
jurisdiction prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be
made except by means of a prospectus meeting the requirements of the Securities Act or an exemption therefrom.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits. The following exhibits are filed or furnished
with this Current Report on Form 8-K:
Exhibit
Number |
|
Description |
| 2.1† |
|
Business Combination Agreement, dated as of August 21, 2024, by and among Inflection Point Acquisition Corp. II, IPXX Merger Sub, LLC and USA Rare Earth, LLC. |
| 10.1 |
|
Sponsor Support Agreement, dated August 21, 2024, by and among and Inflection Point Holdings II LLC, Inflection Point Acquisition Corp. II and USA Rare Earth, LLC. |
| 10.2 |
|
Form of Member Support Agreement, by and among Inflection
Point Holdings II LLC, certain members party thereto and USA Rare Earth, LLC. |
| 10.3 |
|
Form of Securities Purchase Agreement, by and among Inflection Point Acquisition Corp. II, USA Rare Earth, LLC and the purchasers party thereto. |
| 10.4 |
|
Fee Reduction Agreement, dated as of August 20, 2024, by and among
Inflection Point Acquisition Corp. II, Cantor Fitzgerald & Co. and USA Rare Earth, LLC. |
| 99.1 |
|
Press Release, dated August 22, 2024. |
| 99.2 |
|
Investor Presentation. |
| 104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
| † | Certain of the exhibits and schedules to this Exhibit have
been omitted in accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to furnish a copy of all omitted exhibits and schedules
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.
| |
INFLECTION POINT ACQUISITION CORP. II |
| |
|
| Date: August 22, 2024 |
By: |
/s/ Michael Blitzer |
| |
Name: |
Michael Blitzer |
| |
Title: |
Chairman and Chief Executive Officer |
| |
|
(Principal Executive Officer) |
13
Exhibit 2.1
Execution Version
Dated August
21, 2024
Business Combination
Agreement
by and among
Inflection
Point Acquisition Corp. II,
IPXX Merger
Sub LLC
and
USA Rare Earth,
LLC
Table of Contents
| |
|
|
Page |
| |
|
|
|
| Article I THE TRANSACTIONS |
|
4 |
| Section 1.01 |
The Domestication |
|
4 |
| Section 1.02 |
The Merger. |
|
5 |
| Section 1.03 |
Further Assurances. |
|
5 |
| |
|
|
|
| Article II CONSIDERATION |
|
5 |
| Section 2.01 |
Pre-Effective Time Conversion of Company Class C and Class C-1 Convertible Preferred Units |
|
5 |
| Section 2.02 |
Consideration |
|
6 |
| Section 2.03 |
Conversion of Securities |
|
6 |
| Section 2.04 |
Earnout |
|
7 |
| Section 2.05 |
No Fractional Shares |
|
8 |
| Section 2.06 |
Withholding |
|
8 |
| |
|
|
|
| Article III CLOSING |
|
9 |
| Section 3.01 |
Closing |
|
9 |
| Section 3.02 |
Closing Documents |
|
9 |
| Section 3.03 |
Payment of Expenses |
|
9 |
| |
|
|
|
| Article IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
|
9 |
| Section 4.01 |
Organization and Standing |
|
9 |
| Section 4.02 |
Authorization; Binding Agreement |
|
10 |
| Section 4.03 |
Capitalization |
|
10 |
| Section 4.04 |
Subsidiaries |
|
11 |
| Section 4.05 |
No Conflict; Governmental Consents and Filings |
|
11 |
| Section 4.06 |
Financial Statements |
|
12 |
| Section 4.07 |
Undisclosed Liabilities |
|
13 |
| Section 4.08 |
Absence of Certain Changes |
|
13 |
| Section 4.09 |
Compliance with Laws |
|
13 |
| Section 4.10 |
Government Contracts |
|
14 |
| Section 4.11 |
Company Permits |
|
14 |
| Section 4.12 |
Litigation |
|
14 |
| Section 4.13 |
Material Contracts |
|
14 |
| Section 4.14 |
Intellectual Property |
|
17 |
| Section 4.15 |
Taxes and Returns |
|
19 |
| Section 4.16 |
Real Property |
|
21 |
| Section 4.17 |
Personal Property |
|
22 |
| Section 4.18 |
Title to Assets |
|
22 |
| Section 4.19 |
Employee Matters |
|
22 |
| Section 4.20 |
Benefit Plans |
|
23 |
| Section 4.21 |
Environmental Matters |
|
25 |
| Section 4.22 |
Transactions with Related Persons |
|
26 |
| Section 4.23 |
Insurance |
|
26 |
| Section 4.24 |
Top Customers and Suppliers |
|
27 |
| Section 4.25 |
Certain Business Practices |
|
27 |
| Section 4.26 |
Mining |
|
28 |
| Section 4.27 |
Investment Company Act |
|
29 |
| Section 4.28 |
Finders and Brokers |
|
29 |
| Section 4.29 |
Independent Investigation |
|
30 |
| Section 4.30 |
Information Supplied |
|
30 |
| Section 4.31 |
No Additional Representations or Warranties |
|
30 |
| Article V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND MERGER SUB |
|
30 |
| Section 5.01 |
Organization and Standing |
|
31 |
| Section 5.02 |
Authorization; Binding Agreement |
|
31 |
| Section 5.03 |
Governmental Approvals |
|
31 |
| Section 5.04 |
Non-Contravention |
|
32 |
| Section 5.05 |
Capitalization. |
|
32 |
| Section 5.06 |
SEC Filings and Purchaser Financials |
|
33 |
| Section 5.07 |
Absence of Certain Changes |
|
34 |
| Section 5.08 |
Undisclosed Liabilities |
|
34 |
| Section 5.09 |
Compliance with Laws |
|
35 |
| Section 5.10 |
Legal Proceedings; Orders; Permits |
|
35 |
| Section 5.11 |
Taxes and Returns |
|
35 |
| Section 5.12 |
Properties |
|
36 |
| Section 5.13 |
Investment Company Act |
|
36 |
| Section 5.14 |
Trust Account |
|
37 |
| Section 5.15 |
Finders and Brokers |
|
37 |
| Section 5.16 |
Certain Business Practices |
|
37 |
| Section 5.17 |
Insurance |
|
38 |
| Section 5.18 |
Information Supplied |
|
38 |
| Section 5.19 |
Independent Investigation |
|
39 |
| Section 5.20 |
No Additional Representation or Warranties |
|
39 |
| |
|
|
|
| Article VI COVENANTS |
|
40 |
| Section 6.01 |
Access and Information; Cooperation |
|
40 |
| Section 6.02 |
Conduct of Business of the Company |
|
41 |
| Section 6.03 |
Conduct of Business of the Purchaser |
|
44 |
| Section 6.04 |
Annual and Interim Financial Statements |
|
47 |
| Section 6.05 |
Purchaser Public Filings |
|
47 |
| Section 6.06 |
No Solicitation |
|
48 |
| Section 6.07 |
No Trading |
|
48 |
| Section 6.08 |
Notification of Certain Matters |
|
49 |
| Section 6.09 |
Efforts |
|
49 |
| Section 6.10 |
Trust Account |
|
50 |
| Section 6.11 |
Tax Matters |
|
51 |
| Section 6.12 |
Further Assurances |
|
52 |
| Section 6.13 |
The Preparation of Proxy Statement/Registration Statement; Shareholders’ Meeting and Approvals |
|
52 |
| Section 6.14 |
Employee Matters |
|
54 |
| Section 6.15 |
Public Announcements |
|
55 |
| Section 6.16 |
Confidential Information |
|
55 |
| Section 6.17 |
Documents and Information |
|
56 |
| Section 6.18 |
Post-Closing Board of Directors and Executive Officers |
|
57 |
| Section 6.19 |
Indemnification of Directors and Officers; Tail Insurance |
|
57 |
| Section 6.20 |
PIPE Investment |
|
58 |
| Section 6.21 |
Redemption |
|
58 |
| Section 6.22 |
Domestication |
|
58 |
| Section 6.23 |
Adoption of Proxy Statement/Registration Statement |
|
58 |
| Section 6.24 |
Compliance |
|
58 |
| Section 6.25 |
Seventh A&R Company OA |
|
58 |
| Article VII CLOSING CONDITIONS |
|
59 |
| Section 7.01 |
Conditions to Each Party’s Obligations |
|
59 |
| Section 7.02 |
Conditions to Obligations of the Company |
|
59 |
| Section 7.03 |
Conditions to Obligations of the Purchaser and Merger Sub |
|
60 |
| Section 7.04 |
Frustration of Conditions |
|
61 |
| |
|
|
|
| Article VIII TERMINATION AND EXPENSES |
|
62 |
| Section 8.01 |
Termination |
|
62 |
| Section 8.02 |
Expense Reimbursement |
|
63 |
| Section 8.03 |
Effect of Termination |
|
63 |
| |
|
|
|
| Article IX MISCELLANEOUS |
|
64 |
| Section 9.01 |
No Survival |
|
64 |
| Section 9.02 |
Notices |
|
64 |
| Section 9.03 |
Binding Effect; Assignment |
|
64 |
| Section 9.04 |
Third Parties |
|
64 |
| Section 9.05 |
Governing Law |
|
64 |
| Section 9.06 |
Jurisdiction. |
|
65 |
| Section 9.07 |
WAIVER OF JURY TRIAL |
|
65 |
| Section 9.08 |
Specific Performance |
|
65 |
| Section 9.09 |
Severability |
|
65 |
| Section 9.10 |
Amendment; Waiver |
|
65 |
| Section 9.11 |
Entire Agreement |
|
66 |
| Section 9.12 |
Interpretation |
|
66 |
| Section 9.13 |
Counterparts |
|
66 |
| Section 9.14 |
Legal Representation |
|
67 |
| Section 9.15 |
Waiver of Claims Against Trust |
|
68 |
| Section 9.16 |
Company and Purchaser Disclosure Letters |
|
69 |
| |
|
|
|
| Article X DEFINITIONS |
|
69 |
| Section 10.01 |
Certain Definitions |
|
69 |
| Exhibits | |
|
| | |
|
| Exhibit A | |
Form of Purchaser Charter upon Domestication |
| Exhibit B | |
Form of Purchaser Bylaws upon Domestication |
| Exhibit C | |
Form of Certificate of Merger |
| Exhibit D | |
Form of Series A Preferred Stock Certificate of Designation |
| Exhibit E | |
Form of Domesticated Purchaser Series A Investor Warrants |
| Exhibit F | |
Form of A&R Registration Rights Agreement |
| Exhibit G | |
Form of Sponsor Lock-Up Agreement |
Company Disclosure Letter
Section 4.03 – Capitalization
Section 4.04 – Subsidiaries
Section 4.05 – No Conflict; Governmental
Consents and Filings
Section 4.06 – Financial Statements
Section 4.07 – Undisclosed Liabilities
Section 4.08 – Absence of Certain Changes
Section 4.09 – Compliance with Laws
Section 4.10 – Government Contracts
Section 4.11 – Company Permits
Section 4.12 – Litigation
Section 4.13 – Material Contracts
Section 4.14 – Intellectual Property
Section 4.15 – Taxes and Returns
Section 4.16 – Real Property
Section 4.17 – Personal Property
Section 4.18 – Title to Assets
Section 4.19 – Employee Matters
Section 4.20 – Benefit Plans
Section 4.21 – Environmental Matters
Section 4.22 – Transactions with Related
Persons
Section 4.23 – Insurance
Section 4.24 – Top Customers and Suppliers
Section 4.26 – Mining
Section 4.28 – Finders and Brokers
Section 6.02 – Conduct of Business of the
Company
Schedule 10-A – Closing Indebtedness Exceptions
Schedule 10-B – Knowledge Parties
Purchaser Disclosure Letter
Section 5.05 – Capitalization
Section 5.15 – Finders and Brokers
Section 5.17 – Insurance
Section 6.03 – Conduct of Business by the
Purchaser
Schedule 10-A – Knowledge Parties
Schedule 10.01-B – Deferred Underwriting
Expenses
BUSINESS COMBINATION AGREEMENT
This Business Combination
Agreement (this “Agreement”) is made and entered into as of August 21, 2024, by and among (i) Inflection Point Acquisition
Corp. II, a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior
to Closing) (the “Purchaser”), (ii) IPXX Merger Sub, LLC, a Delaware limited liability company and a direct wholly
owned subsidiary of the Purchaser (“Merger Sub”) and (iii) USA Rare Earth, LLC, a Delaware limited liability company
(the “Company”). The Purchaser, Merger Sub and the Company are sometimes referred to herein individually as a “Party”
and, collectively, as the “Parties.”
RECITALS:
WHEREAS, the Purchaser
is a special purpose acquisition company incorporated as a Cayman Islands exempted company for the purpose of effecting a merger, share
exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses;
WHEREAS, Merger Sub
is a newly incorporated Delaware limited liability company, wholly owned by the Purchaser, and was formed for the purpose of effectuating
the Merger (as defined below);
WHEREAS, at least one
(1) day prior to the Closing Date (as defined below) and subject to the satisfaction or waiver of the conditions of this Agreement (other
than those conditions that by their nature are to be satisfied at the Closing), the Purchaser shall transfer by way of continuation to
and domesticate as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law, as amended (the “DGCL”),
and Section 206 of the Companies Act (As Revised) of the Cayman Islands (the “Cayman Companies Act,” and such continuation
and domestication, the “Domestication”);
WHEREAS, (i) immediately
prior to the Domestication, each then issued and outstanding Purchaser Class B Ordinary Share shall convert automatically, on a one-for-one
basis, into one (1) Purchaser Class A Ordinary Share (the “Sponsor Share Conversion”) and (ii) in connection with the
Domestication, (x) each then issued and outstanding Purchaser Class A Ordinary Share shall convert automatically, on a one-for-one basis,
into one (1) share of Domesticated Purchaser Common Stock; (y) each then issued and outstanding warrant of the Purchaser (each a “Cayman
Purchaser Warrant”) shall convert automatically into a warrant to acquire one (1) share of Domesticated Purchaser Common Stock
(each a “Domesticated Purchaser Warrant”), pursuant to the Warrant Agreement; and (z) each then issued and outstanding
unit of the Purchaser (the “Cayman Purchaser Units”) shall be cancelled and will thereafter entitle the holder thereof
to one share of Domesticated Purchaser Common Stock and one-half (1/2) of one Domesticated Purchaser Warrant;
WHEREAS, in order to
effectuate the Domestication, and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions
that by their nature are to be satisfied at the Closing), the Purchaser shall (a) file all applicable notices, declarations, affidavits,
statements of assets and liabilities, shareholder approvals, undertakings and other documents required to be filed, pay all applicable
fees required to paid, and cause the satisfaction of all other conditions to deregistration required to be satisfied, in each case, under
Section 206 of the Cayman Companies Act and in accordance therewith, (b) file a certificate of domestication and a certificate of incorporation
in substantially the form attached hereto as Exhibit A (the “Purchaser Charter upon Domestication”) with the
Secretary of State of Delaware and (c) adopt bylaws in substantially the form attached hereto as Exhibit B (the “Purchaser
Bylaws upon Domestication”), and in each case with such changes to the forms attached hereto as Exhibits A and B as may be agreed
in writing by the Purchaser and the Company;
WHEREAS, upon the terms
and subject to the conditions of this Agreement, and in accordance with the Delaware Limited Liability Company Act (“DLLCA”)
and the Cayman Companies Act, as applicable, the Parties intend to enter into a business combination transaction by which the Company
and Merger Sub will file with the Delaware Secretary of State a certificate of merger substantially in the form attached hereto as Exhibit
C (the “Certificate of Merger”) in accordance with the applicable provisions of the DLLCA and pursuant thereto
Merger Sub will merge with and into the Company (the “Merger,” and together with the Domestication and the other transactions
contemplated by this Agreement and the Ancillary Documents, the “Transactions”), with the Company being the surviving
company of the Merger (the Company, in its capacity as the surviving corporation of the Merger, is sometimes referred to as the “Surviving
Company”);
WHEREAS, as a condition
and inducement to the Company’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this
Agreement, the Sponsor has executed and delivered to the Company the Sponsor Support Agreement, dated as of the date hereof (the “Sponsor
Support Agreement”), pursuant to which the Sponsor has agreed to, among other things, (i) vote to adopt and approve this Agreement
and the other documents contemplated hereby (including the applicable Ancillary Documents) and the transactions contemplated hereby and
thereby and (ii) forfeit 60,000 Domesticated Purchaser Warrants for every $1,000,000 by which (A) the gross proceeds at Closing from the
Trust Account (after giving effect to the Redemption (as defined herein)) plus (B) the gross proceeds from the Class A Preferred Unit
Investment, the Series A Preferred Stock Investment and any PIPE Investment are below $50,000,000, up to a maximum of 1,500,000 Domesticated
Purchaser Warrants forfeited (such forfeiture, if any, the “Sponsor Forfeiture”);
WHEREAS, as a condition
and inducement to the Purchaser’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this
Agreement, certain Members of the Company have executed and delivered to the Purchaser the Member Support Agreement, pursuant to which
such Members have agreed to, among other things, support the transactions contemplated by this Agreement and the Ancillary Documents and
oppose any Acquisition Proposal or Alternative Transaction (each as defined herein);
WHEREAS, as a condition
and inducement to the Parties’ willingness to enter into this Agreement, simultaneously with the execution and delivery of this
Agreement, (i) the Company and the investors named therein (the “Class A-1 Preferred Unit Investors”) have executed
and delivered that certain securities purchase agreement, dated as of the date of such agreement (the “Class A-1 Preferred SPA”),
pursuant to which the Class A-1 Preferred Unit Investors have agreed, among other things, to purchase from the Company, and the Company
has agreed, among other things, to sell to the Class A-1 Preferred Unit Investors, the Company Class A-1 Convertible Preferred Units and
the Company Class A-1 Preferred Investor Warrants for an (the “Class A-1 Preferred Unit
Investment”), and (ii) the Company and the investors named therein (the “Class A-2 Preferred Unit Investors”,
and together with the Class A-1 Preferred Unit Investors, the “Class A Preferred Unit Investors”) have executed and
delivered that certain securities purchase agreement, dated as of the date of such agreement, (the “Class A-2 Preferred SPA”,
and together with the Class A-1 Preferred SPA, the “Class A Preferred SPA”), pursuant to which the Class A-2 Preferred
Unit Investors have agreed, among other things, to purchase from the Company, and the Company has agreed, among other things, to sell
to the Class A-2 Preferred Unit Investors, the Company Class A-2 Convertible Preferred Units and the Company Class A-2 Preferred Investor
Warrants (the “Class A-2 Preferred Unit Investment”, and together with
the Class A-1 Preferred Unit Investment, the “Class A Preferred Unit Investment”), substantially concurrently with
the execution and delivery of this Agreement;
WHEREAS, as a condition
and inducement to the Parties’ willingness to enter into this Agreement, simultaneously with the execution and delivery of this
Agreement, the Purchaser, the Company and the investors named therein (the “Series A Preferred Stock Investors”) have
executed and delivered that certain securities purchase agreement, dated as of the date hereof (the “Series A SPA”),
pursuant to which the Series A Preferred Stock Investors have agreed, among other things, to purchase from the Purchaser, and the Purchaser
has agreed, among other things, to sell to the Series A Preferred Stock Investors, shares of the Purchaser’s 12% Series A Cumulative
Convertible Preferred Stock, par value $0.0001 per share, having the rights, preferences and privileges set forth in the Purchaser’s
Certificate of Designations of Preferences, Rights and Limitations of 12% Series A Cumulative Convertible Preferred Stock, in substantially
the form attached hereto as Exhibit D (the “Series A Preferred Stock Certificate of Designation,” and such
stock the “Domesticated Purchaser Series A Preferred Stock”) and warrants to purchase Domesticated Purchaser Common
Stock in substantially the form attached hereto as Exhibit E (the “Domesticated Purchaser Series A Investor Warrants”),
substantially concurrently with the Closing (such investment the “Series A Preferred Stock Investment”);
WHEREAS, from time
to time following the date hereof and prior to the Closing, the Purchaser may enter into subscription, purchase or similar agreements
with investors, pursuant to which, and on the terms and subject to the conditions of which, such investors will agree to participate in
the PIPE Investment (as defined herein);
WHEREAS, simultaneously
with the Closing, the Managers, the Members, the Company and the Purchaser shall adopt the Seventh Amended and Restated Operating Agreement
of the Company (the “Seventh A&R Company OA”) to, among other things, permit the issuance and ownership of the
Company Units as contemplated to be issued and owned upon consummation of the Transactions and admit the Purchaser as the managing member
of the Company;
WHEREAS, in connection
with the consummation of the Transactions, simultaneously with the Closing, the Sponsor, the Purchaser and the other parties thereto will
enter into an Amended and Restated Registration Rights Agreement (the “A&R Registration Rights Agreement”) in substantially
the form attached hereto as Exhibit F, with such changes thereto as may be agreed in writing by the Purchaser and the Company;
WHEREAS, in connection
with the consummation of the Transactions, simultaneously with the Closing, (i) the Sponsor will enter into a lock-up Agreement (the “Sponsor
Lock-Up Agreement”) in substantially the form attached hereto as Exhibit G, with such changes thereto as may be
agreed in writing by the Purchaser and the Company;
WHEREAS, the Parties
intend that, for U.S. federal, and applicable state and local, income tax purposes, (i) the Domestication qualifies as a “reorganization”
described in Section 368(a)(1)(F) of the Code and the Treasury Regulations promulgated thereunder, (ii) the Sponsor Share Conversion is
treated as a “reorganization” described in Section 368(a)(1)(E) of the Code and the Treasury Regulations promulgated thereunder,
and (iii) the Merger qualifies as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations
promulgated thereunder (each an “Intended Tax Treatment,” and collectively, the “Intended Tax Treatments”),
and that this Agreement be, and hereby is, adopted as a “plan of reorganization” for the purposes of Section 368 of the Code
and Treasury Regulations Section 1.368-2(g);
WHEREAS, the Managers
of the Company have unanimously, pursuant to and in accordance with the Company OA: (a) determined that it is in the best interests of
the Company and the Members of the Company, and declared it advisable, for the Company to enter into this Agreement and the Ancillary
Documents and consummate the Merger and the other Transactions; and (b) approved this Agreement, the Ancillary Documents and the Transactions
on the terms and subject to the conditions of this Agreement;
WHEREAS, the board
of directors of the Purchaser has unanimously: (a) determined that the Merger is in the best interests of the Purchaser and the Purchaser
Shareholders, as a whole, and declared it advisable for the Purchaser to enter into this Agreement and the Ancillary Documents providing
for the Merger and the other Transactions; (b) approved this Agreement, the Ancillary Documents and the Transactions on the terms and
subject to the conditions of this Agreement; and (c) adopted a resolution recommending the Merger and the other Transactions be adopted
by the Purchaser Shareholders;
WHEREAS, the Purchaser,
as the sole member of Merger Sub, has approved and adopted this Agreement, the Ancillary Documents, the Merger and the other Transactions;
and
WHEREAS, in furtherance
of the Merger and in accordance with the terms hereof, the Purchaser shall provide an opportunity to the holders of its public shares
to have their public shares redeemed on the terms and conditions set forth in this Agreement and the Purchaser’s Organizational
Documents, which redemption shall occur at least one (1) day prior to the Domestication as set forth in this Agreement (the “Redemption”).
NOW, THEREFORE, in
consideration of the premises set forth above, and the representations, warranties, covenants and agreements contained in this Agreement,
and for other consideration, the receipt and sufficiency of which is acknowledged and agreed to by the Parties, and intending to be legally
bound hereby, the Parties hereto agree as follows:
Article
I
THE TRANSACTIONS
Section 1.01 The Domestication.
(a) Domestication.
Upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by
their nature are to be satisfied at Closing), and in accordance with the DGCL and the Companies Act, at least one (1) day after the
Redemption and at least one (1) day prior to the Closing, the Purchaser shall, in accordance with applicable Law, any applicable
rules and regulations of the SEC, Nasdaq and the Purchaser’s Organizational Documents, as applicable, cause the Domestication
to become effective, including by (a) filing with the Delaware Secretary of State a certificate of domestication with respect to the
Domestication, in form and substance reasonably acceptable to the Purchaser and the Company, together with the Purchaser Charter
upon Domestication, in each case, in accordance with the provisions thereof and applicable Law, (b) adopting the Purchaser Bylaws
upon Domestication, (c) completing and making and procuring all those filings required to be made with the Cayman Registrar in
connection with the Domestication, and (d) filing with the Cayman Registrar all applicable notices, declarations, affidavits,
statements of assets and liabilities, shareholder approvals, undertakings and other documents required to be filed, pay all
applicable fees required to paid, and cause the satisfaction of all other conditions to deregistration required to be satisfied, in
each case, under Section 206 of the Cayman Companies Act and obtaining a certificate of de-registration from the Cayman
Registrar.
(b)
Effect on Purchaser Securities. (i) Immediately prior to the Domestication, (x) pursuant to the Sponsor Support Agreement,
each then issued and outstanding Purchaser Class B Ordinary Share shall convert automatically, on a one-for-one basis, into one (1) Purchaser
Class A Ordinary Share and (y) each Cayman Purchaser Private Placement Warrant forfeited to the Purchaser by the Sponsor in the Sponsor
Forfeiture pursuant to the Sponsor Support Agreement shall be cancelled and shall cease to exist and (ii) in connection with the Domestication,
(x) each then issued and outstanding Purchaser Class A Ordinary Share shall convert automatically, on a one-for-one basis, into one (1)
share of Domesticated Purchaser Common Stock; (y) each then issued and outstanding Cayman Purchaser Warrant shall convert automatically
into one (1) Domesticated Purchaser Warrant, pursuant to the Warrant Agreement; and (z) each then issued and outstanding Cayman Purchaser
Units shall be cancelled and will thereafter entitle the holder thereof to one (1) share of Domesticated Purchaser Common Stock and one-half
(1/2) of one Domesticated Purchaser Warrant.
Section 1.02 The
Merger.
(a)
Effective Time. Upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement (other than
those conditions that by their nature are to be satisfied at Closing), on the Closing Date the Company and Merger Sub shall cause the
Merger to be consummated by filing the Certificate of Merger with the Secretary of State of the State of Delaware, in accordance with
the applicable provisions of the DLLCA (the time of such filing, or such later time as may be agreed in writing by the Company, Merger
Sub and Purchaser and specified in the Certificate of Merger, being the “Effective Time”).
(b)
Merger. At the Effective Time, upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement
(other than those conditions that by their nature are to be satisfied at Closing), 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 Company after the Merger and as a direct, wholly-owned subsidiary of the Purchaser.
References to the Company for periods after the Effective Time shall include the Surviving Company.
(c)
Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate
of Merger and the applicable provisions of the DLLCA. 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 Company, which shall include the assumption by the Surviving Company 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.
(d)
Governing Documents. At the Effective Time, the operating agreement of the Surviving Company shall be amended and restated
to be the Seventh A&R Company OA.
(e)
Directors and Officers of the Surviving Company. Immediately after the Effective Time, the initial board of directors and
executive officers of the Surviving Company shall be as be determined by the Company and the Purchaser (solely with respect to its designee)
pursuant to Section 6.18 and otherwise in accordance with the terms of this Agreement.
Section 1.03
Further Assurances. From time to time after the Closing Date, upon the reasonable written request of any Party, each
Party shall execute, acknowledge and deliver such further instruments and documents, and take such additional reasonable action, to effect,
consummate, confirm or evidence the Transactions and carry out the purpose this Agreement.
Article
II
CONSIDERATION
Section 2.01 Pre-Effective
Time Conversion of Company Class C and Class C-1 Convertible Preferred Units. Immediately prior to the Effective Time, (i)
each Company Warrant exercisable for Company Class C Convertible Preferred Units or Company Class C-1 Convertible Preferred Units
that is outstanding and unexercised immediately prior to the Effective Time shall automatically be exercised on a cashless basis in
full in accordance with its terms and (ii) immediately thereafter, each issued and outstanding Company Class C Convertible Preferred
Unit and each issued and outstanding Company Class C-1 Convertible Preferred Unit (including each Company Class C Convertible
Preferred Unit and Company Class C-1 Convertible Preferred Unit issued upon the automatic exercise described in the preceding clause
(i)) shall automatically convert into such number of Company Class B Units into which such Company Class C Convertible Preferred
Unit or Company Class C-1 Convertible Preferred Unit, as applicable, are convertible in connection with the Merger pursuant to the
Company’s Organizational Documents. Upon such conversion, all of the Company Class C Convertible Preferred Units and Company
Class C-1 Convertible Preferred Units converted into Company Class B Units shall no longer be outstanding and shall cease to exist,
and each holder of Company Class C Convertible Preferred Units and Company Class C-1 Convertible Preferred Units shall thereafter
cease to have any rights with respect to such securities.
Section 2.02
Consideration.
(a)
Class A Convertible Preferred Units. The consideration to be paid in, or in connection with, the Merger to a holder in respect
of each Company Class A-1 Convertible Preferred Unit or Company Class A-2 Convertible Preferred Unit shall be one (1) share of Domesticated
Purchaser Series A Preferred Stock (the “Per Class A Convertible Preferred Unit Consideration”).
(b)
Company Class A Preferred Investor Warrants. The consideration to be paid in, or in connection with, the Merger to a holder
in respect to each Company Class A-1 Preferred Investor Warrants or Company Class A-2 Preferred Investor Warrants shall be such number
of Domesticated Purchaser Series A Investor Warrant(s) eligible to purchase a number of shares of Domesticated Purchaser Common Stock
equal to the product of (i) the number of Company Class A Units that would be issued upon full exercise of such Company Class A-1 Preferred
Investor Warrants or Company Class A-2 Preferred Investor Warrants immediately prior to the Effective Time multiplied by (ii) the Exchange
Ratio (the “Class A Preferred Investor Warrant Consideration”).
(c)
All Other Company Securities. The aggregate consideration to be paid to holders of all other equity interests of the Company
in, or in connection with, the Merger shall be the Aggregate Base Consideration plus, subject to the vesting and forfeiture conditions
specified in Section 2.04, the Aggregate Earn-out Consideration. The consideration to be paid in, or in connection with, the Merger
in respect of each Company Class A Unit and each Company Class B Unit that is issued and outstanding, or deemed to be issued and outstanding
(after giving effect to the conversion described in Section 2.01 and including all Company Class A Units and Company Class B Units
deemed to be issued and outstanding pursuant Section 2.03 and Section 2.03(b)(i)), immediately prior to the Effective Time
shall be (i) a number of shares of Domesticated Purchaser Common Stock equal to the Exchange Ratio (the “Per Unit Base Consideration”)
and (ii) the right to receive, subject to the vesting conditions specified in Section 2.04, a number of shares of Domesticated
Purchaser Common Stock equal to the Earn-out Exchange Ratio (the “Per Unit Earn-out Consideration”).
Section 2.03
Conversion of Securities.
(a)
Effect on Company Units. At the Effective Time, by virtue of the Merger and without any action on the part of the Purchaser,
Merger Sub, the Company or any holder of securities of any of the foregoing:
(i)
each Company Unit that is owned by the Purchaser, Merger Sub or the Company (in treasury or otherwise) immediately prior to the
Effective Time (each, an “Excluded Unit”) shall be cancelled and shall cease to exist and no consideration shall be
delivered in exchange therefore;
(ii)
each Company Incentive Unit that is issued and outstanding immediately prior to the Effective Time (other than Excluded Units)
shall, by virtue of the occurrence of the Merger, (x) to the extent the holder of such Company Incentive Unit is continuously employed
by or providing services to the Company from the date hereof through the Effective Time, shall be automatically deemed to be fully vested,
(y) regardless of such employment or service status, shall be automatically deemed exchanged or converted (on a cashless basis) into the
number of whole Company Class A Units determined in accordance with the Company Incentive Unit Exchange Calculation and in accordance
with the terms of such Company Incentive Unit, the Company OA and the Company Incentive Plan, and (z) each Company Class A Unit issued
or issuable upon such deemed exchange or conversion shall be treated as being issued and outstanding immediately prior to the Effective
Time and, pursuant to Section 2.03(a)(iii) (and without duplication) shall be canceled and converted into the right to receive the Per
Unit Base Consideration and the Per Unit Earn-out Consideration;
(iii)
each Company Class A Unit that is issued and outstanding immediately prior to the Effective Time (other than Excluded Units) shall
be cancelled and converted into the right to receive the Per Unit Base Consideration and the Per Unit Earn-out Consideration;
(iv)
each Company Class B Unit that is issued and outstanding immediately prior to the Effective Time (other than Excluded Units) shall
be cancelled and converted into the right to receive the Per Unit Base Consideration and the Per Unit Earn-out Consideration; and
(v)
each Company Class A-1 Convertible Preferred Unit and each Company Class A-2 Convertible Preferred Unit that is issued and outstanding
immediately prior to the Effective Time (other than Excluded Units) shall be cancelled and converted into the right to receive the Per
Class A Convertible Preferred Unit Consideration.
(b)
Effect on Company Warrants. At the Effective Time, by virtue of the Merger and without any action on the part of the Purchaser,
Merger Sub, the Company or any holder of securities of any of the foregoing:
(i) each
Company Warrant that is outstanding and unexercised immediately prior to the Effective Time shall automatically be exercised on a
cashless basis in full in accordance with its terms immediately prior to the Effective Time, and each Company Class A Unit or
Company Class B Unit issued or issuable upon such exercise shall be treated as being
issued and outstanding immediately prior to the Effective Time and, pursuant to Section 2.03(a)(iii) or (iv) (and
without duplication) shall be canceled and converted into the right to receive the Per Unit Base Consideration and the Per Unit
Earn-out Consideration; and
(ii)
each Company Class A-1 Preferred Investor Warrant and Company Class A-2 Preferred Investor Warrant shall be cancelled and converted
into the right to receive a Domesticated Purchaser Series A Investor Warrant exercisable for a number of shares of Domesticated Purchaser
Common Stock equal to the product of (i) the aggregate number of Company Class A Units that would be issued upon full exercise of such
Company Class A-1 Preferred Investor Warrants or Company Class A-2 Preferred Investor Warrant multiplied by (ii) the Exchange Ratio.
Section 2.04
Earnout.
(a)
Earn-out Consideration. Following the Closing, within five (5) Business Days after the occurrence of a Triggering
Event, the Purchaser shall issue or cause to be issued to the Eligible Stockholders (based on their respective Pro Rata Shares), the following
shares of Domesticated Purchaser Common Stock (which shall be equitably adjusted for any stock split, reverse stock split, stock dividend,
reorganization, recapitalization, reclassification, combination, exchange of shares or other like change or transaction with respect to
shares of Domesticated Purchaser Common Stock occurring after the Closing, the “Aggregate Earn-out Consideration”),
upon the terms and subject to the conditions set forth in this Agreement and the Ancillary Documents:
(i)
Upon the occurrence of Triggering Event I, a one-time issuance of 5,000,000 Earnout Shares; and
(ii)
Upon the occurrence of Triggering Event II, a one-time issuance of 5,000,000 Earnout Shares.
(b)
If, during the Earnout Period, there is a Change of Control pursuant to which the Purchaser or its stockholders have the right
to receive consideration implying a value per share of Domesticated Purchaser Common Stock (as determined in good faith by the Post-Closing
Purchaser Board) of:
(i)
less than $15.00, then Section 2.04(a) and this Section 2.04(a)(b) shall terminate and no further shares of Domesticated
Purchaser Common Stock shall be issuable thereunder or hereunder;
(ii)
greater than or equal to $15.00 but less than $20.00, then, (A) immediately prior to such Change of Control, the Company
shall issue 5,000,000 shares of Domesticated Purchaser Common Stock to the Eligible Stockholders (based on their respective Pro Rata Shares)
(less any Earnout Shares issued prior to such Change of Control pursuant to Section 2.04(a)(i) or (ii); provided, that such
reduction shall not reduce the number of shares required to be issued to a number that is below zero) and (B) thereafter, Section 2.04(a)
and this Section 2.04(a)(b) shall terminate and no further Earnout Shares shall be issuable thereunder or hereunder;
(iii)
greater than or equal to $20.00, then (A) immediately prior to such Change of Control, the Company shall issue 10,000,000 shares
of Domesticated Purchaser Common Stock to the Eligible Stockholders (based on their respective Pro Rata Shares) (less any Earnout Shares
issued prior to such Change of Control pursuant to Sections (i) or (ii); provided, that such reduction shall not reduce
the number of shares required to be issued to a number that is below zero) and (B) thereafter, Section 2.04(a) and this Section
2.04(a)(b) shall terminate and no further Earnout Shares shall be issuable thereunder or hereunder;
(c)
The Common Stock Price targets set forth in the definitions of Triggering Event I and Triggering Event II, and in Sections Section
2.04(a)(i) and (ii) shall be equitably adjusted for any stock split, reverse stock split, stock dividend, reorganization, recapitalization,
reclassification, combination, exchange of shares or other like change or transaction with respect to shares of Domesticated Purchaser
Common Stock occurring after the Closing.
(d)
No certificates or scrip or shares representing fractional Earnout Shares shall be issued pursuant to this Section 2.04
and such fractional share interests will not entitle the owner thereof to vote or to have any rights of shareholder. In lieu of any fractional
Earnout Shares to which any holder of Eligible Stockholder would otherwise be entitled, the Company shall round down to the nearest whole
Earnout Share. No cash settlements shall be made with respect to fractional shares eliminated by rounding.
Section 2.05
No Fractional Shares. No fractional shares of Domesticated Purchaser Common Stock, or certificates or scrip representing
fractional shares of Domesticated Purchaser Common Stock, will be issued upon the conversion of the Company Securities pursuant to the
Merger, and any such fractional shares or interests therein will not entitle the owner thereof to vote or to any rights of a stockholder
of Purchaser. Any fractional shares of Domesticated Purchaser Common Stock will be rounded down to the nearest whole number.
Section 2.06
Withholding. Notwithstanding any other provision to this Agreement, the Purchaser, Merger Sub, the Company, and the
Surviving Company (and their respective Representatives) shall be entitled to deduct and withhold from any amount payable to any Person
pursuant to this Agreement such Taxes that are required to be deducted or withheld with respect to such amounts under the Code, or under
any provision of U.S. state or local or non-U.S. tax law. To the extent that amounts are so deducted and withheld and paid over to the
appropriate Governmental Authorities, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person
in respect of which such deduction and withholding was made. Notwithstanding the foregoing, the Purchaser, Merger Sub, the Company and
the Surviving Company shall use commercially reasonable efforts to provide recipients of consideration with a reasonable opportunity to
provide documentation establishing exemptions from or reductions of such withholdings. In the case of any such payment payable to employees
of the Company or its Subsidiaries in connection with the Merger treated as compensation, the Parties shall reasonably cooperate to pay
such amounts through the Company’s or the relevant Subsidiary’s payroll to facilitate applicable withholding.
Article
III
CLOSING
Section 3.01
Closing. Subject to the satisfaction or waiver of the conditions set forth in Article VII, the consummation of
the Transactions (other than the transactions contemplated by this Agreement that by their nature are to be satisfied prior to the Closing)
(the “Closing”) shall take place by electronic exchange of documents and signatures at a time and date to be specified
in writing by the Parties, which date shall be no later than the third (3rd) Business Day after all the Closing conditions
in Article VII have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing,
but subject to the satisfaction or waiver of those conditions), 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”).
Section 3.02
Closing Documents.
(a)
Purchaser Closing Certificate. Four (4) Business Days prior to the Closing, the Purchaser shall deliver to the Company a
written notice setting forth the Purchaser’s good faith calculation of the following: (i) the aggregate amount of cash proceeds
that will be required to satisfy any exercise of the Redemptions; (ii) the aggregate amount of the Purchaser Transaction Costs as of the
Closing; and (iii) the number of shares of Domesticated Purchaser Common Stock and Domesticated Purchaser Warrants, in each case, to be
outstanding as of the Closing and after giving effect to the Domestication, the Redemption and the issuance of securities in connection
with the consummation of the PIPE Investment and any forfeiture of Domesticated Purchaser Warrants pursuant to the Sponsor Support Agreement
(but excluding any shares of Domesticated Purchaser Common Stock to be issued in the Merger).
(b)
Company Closing Certificate. Four (4) Business Days prior to the Closing, the Company shall deliver to the Purchaser a written
notice setting forth the Company’s good faith calculation of the aggregate amount of the Company Transaction Costs as of the Closing,
including all invoices, wire instructions and applicable Tax forms for each Person owed (and any other supporting details reasonably requested
by the Purchaser).
Section 3.03
Payment of Expenses.
(a)
Company Transaction Costs. On the Closing Date, the Purchaser shall pay or cause to be paid by wire transfer of immediately
available funds all Company Transaction Costs.
(b)
Purchaser Transaction Costs. On the Closing Date, the Purchaser shall pay or cause to be paid by wire transfer of immediately
available funds all Purchaser Transaction Costs.
Article
IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the
disclosure letter dated as of the date of this Agreement delivered by the Company to the Purchaser (the “Company Disclosure Letter”)
prior to or in connection with the execution and delivery of this Agreement or as are disclosed in the Company Financials, the Company
hereby represents and warrants to the Purchaser and Merger Sub, as of the date hereof and as of the Closing, as follows:
Section 4.01
Organization and Standing. The Company is a Delaware limited liability company duly formed, validly existing and in
good standing under the DLLCA and has all requisite power and authority to own, lease and operate its properties and to carry on its business
as now being conducted, except as would not be material to the Target Companies, taken as a whole. Each Subsidiary of the Company is a
corporation, limited liability company or other entity duly formed, validly existing and in good standing under the Laws of its jurisdiction
of organization 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, except as would not be material to the Target Companies, taken as a whole. Each Subsidiary of the Company is duly
qualified or licensed and in good standing in the jurisdiction in which it is formed 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, except where the failure to be so qualified or licensed or in
good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company
has provided to the Purchaser accurate and complete copies of the Target Companies’ Organizational Documents, each as amended to
date and as currently in effect. No Target Company is in violation of any provision of its Organizational Documents in any material respect.
Section 4.02
Authorization; Binding Agreement. The Target Companies have all requisite 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 Target Companies’ respective
obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery of this Agreement and each Ancillary
Document to which each Target 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 applicable Target Company’s board of managers (or other similar governing
body) in accordance with such Target Companies’ Organizational Documents, the DLLCA, any other applicable Law or any Contract to
which such Target Company or any of its members is a party or by which it or its securities are bound and (b) no other proceedings on
the part of the Target Companies 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. This Agreement has been, and each Ancillary Document to which the Target Companies
are or are required to be a party shall be when delivered, duly and validly executed and delivered by the Target Companies 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 Target Companies, enforceable against
the Target Companies in accordance with its terms, subject to the Enforceability Exceptions. The Company’s board of Managers, by
resolutions duly adopted, has (i) determined that this Agreement, the Ancillary Documents and the Transactions are advisable, and in the
best interests of, the Company and its Members and (ii) approved this Agreement and the Ancillary Documents and the Transactions in accordance
with the DLLCA, the Company’s Organizational Documents and any other applicable Law. 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 do not require
the approval of the Members in their capacity as such, or by any class or series of Members, or by holders of any other Company Securities,
pursuant to the Company OA, the DLLCA and any other applicable Laws.
Section 4.03
Capitalization.
(a)
Set forth on Section 4.03(a) of the Company Disclosure Letter is a true, correct and complete list of each record holder
of Company Securities and the number and type of Company Securities held by each such holder as of the date hereof, subject to the additional
information set forth on Section 4.03(a) of the Company Disclosure Letter.
(b)
Prior to giving effect to the Transactions, all of the Company Securities are and will be owned free and clear of any Liens other
than those imposed under the Company’s Organizational Documents, applicable securities Laws, or as set forth on Section 4.03(b)(i)
of the Company Disclosure Letter, and other than such securities, the Company does not have any other issued or outstanding membership
or any other securities. All of the issued and outstanding Company Securities have been duly authorized and validly issued in accordance
with all applicable Laws, including applicable securities Laws, and the Company’s Organizational Documents, are fully paid and nonassessable
and are not subject to, nor were they issued in violation of, any preemptive rights, rights of first refusal or similar rights, except
where such violation or failure would not reasonably be expected to be, individually or in the aggregate, material to the Target Companies,
taken as a whole. Except as set forth on Section 4.03(b)(ii) of the Company Disclosure Letter, there are no 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 security holders is a party or bound relating to any membership interests or other Company
Securities, whether or not outstanding. Except as set forth on Section 4.03(b)(iii) of the Company Disclosure Letter, there are
no outstanding or authorized equity appreciation, phantom equity or similar rights with respect to the Company. There are no voting trusts,
proxies, shareholder agreements or any other agreements or understandings with respect to the voting of the Company Securities. Except
as set forth in the Company’s Organizational Documents, there are no outstanding contractual obligations of the Target Companies
to repurchase, redeem or otherwise acquire any equity interests or securities of such Target Company, nor has any Target Company granted
any registration rights to any Person with respect to such Target Companies’ securities. Except as set forth on Section 4.03(b)(iv)
of the Company Disclosure Letter, valid 83(b) election has been made with respect to each Company Incentive Unit that is intended to constitute
a “profits interest” within the meaning of the Revenue Procedure 93-27, 1993-27 C.B 343 and Revenue Procedure 2001-43, 2001-2
C.B. 1991. Except as disclosed in the Company Financials, since December 31, 2021, the Company has not declared or paid any distribution
in respect of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interests of the Company, and the
board of managers of the Company has not authorized any of the foregoing.
(c)
Except as provided for in this Agreement, as a result of the consummation of the Transactions, no units, warrants, options or other
securities of the Target Companies are issuable and no rights in connection with any units, warrants, options or other securities of the
Target Companies accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
Section 4.04
Subsidiaries. Section 4.04 of the Company Disclosure Letter sets forth the names of the Company’s direct
and indirect Subsidiaries, and with respect to each Subsidiary (a) their jurisdiction of incorporation or organization, (b) all names
other than its legal name under which any Subsidiary does business, as applicable, (c) its authorized shares or other equity interests
(if applicable) and (d) the number of issued and outstanding shares or other equity interests and the record holders and beneficial owners
thereof. All of the outstanding equity securities of each Subsidiary of the Company are duly authorized and validly issued, fully paid
and non-assessable (if applicable), and were, in all material respects, offered, sold and delivered in compliance with all applicable
securities Laws, and owned by one or more of the Company or its Subsidiaries free and clear of all Liens (other than, if any, those imposed
by such Subsidiary’s Organizational Documents, applicable securities Laws, Permitted Liens or immaterial Liens).
Section 4.05
No Conflict; Governmental Consents and Filings.
(a)
Except as otherwise described in Section 4.05(a) of the Company Disclosure Letter, subject to the receipt of consents, approvals,
authorizations and other requirements set forth in Section 4.02 of the Company Disclosure Letter, the execution, delivery and performance
of this Agreement (including the consummation by the Target Companies of the Transactions) and the other Ancillary Documents to which
the Target Companies are a party by the Target Companies, do not and will not: (i) violate any provision of, or result in the breach of,
any applicable Law to which any Target Company is subject or by which any property or asset of any Target Company is bound; (ii) conflict
with or violate the Organizational Documents of any Target Company; (iii) violate any provision of or result in a breach, default or acceleration
of, require a consent under, or create any right to payment under any Company Material Contract, material Company Real Property Lease
(as defined in Section 4.16(b) herein) or Material Current Government Contract, or terminate or result in the termination of any
Company Material Contract, material Company Real Property Lease or Material Current Government Contract, or result in the creation of
any Lien (other than a Permitted Lien) under any Company Material Contract, material Company Real Property Lease or Material Current Government
Contract upon any of the properties or assets of any Target Company, or constitute an event which, after notice or lapse of time or both,
would result in any such violation, breach, default, acceleration, termination or creation of a Lien (other than a Permitted Lien); or
(iv) result in a violation or revocation of any required Consents, except to the extent that the occurrence of any of the foregoing items
set forth in clauses (i), (iii) or (iv) would not, individually or in the aggregate, reasonably be expected to prevent, materially delay
or materially impair the ability of the Company to consummate the Transactions or to have a Company Material Adverse Effect.
(b)
Assuming the truth and completeness of the representations and warranties of the Purchaser and Merger Sub contained in this Agreement,
no consent, notice, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on
the part of the Target Companies with respect to the Target Companies’ execution, delivery or performance of this Agreement, any
of the other Ancillary Documents to which it is a party or the consummation by the Target Companies of the Transactions, except for: (i)
any consents, notices, approvals, authorizations, designations, declarations or filings, the absence of which would not, individually
or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (ii) compliance with any applicable requirements
of the securities Laws; and (iii) as otherwise disclosed on Section 4.05(b) of the Company Disclosure Letter.
Section 4.06
Financial Statements.
(a)
The Company has provided to the Purchaser true, correct and complete copies of: (i) the unaudited consolidated financial statements
of the Target Companies (including, in each case, any related notes thereto) as of and for the (x) year ended December 31, 2023 and (y)
six month periods ending June 30, 2024 and June 30, 2023, each consisting of the consolidated balance sheets of the Target Companies as
of such dates and the related consolidated income statements and statements of cash flows for the periods then ended (the “Draft
Company Financials”) and (ii) the audited consolidated financial statements of the Target Companies (including, in each case,
any related notes thereto) as of and for the year ended December 31, 2022, consisting of the consolidated audited balance sheet of the
Target Companies as of such date and the related consolidated audited income statement, changes in member equity and statement of cash
flows for the fiscal year then ended, audited in accordance with GAAP and PCAOB (the “Audited Company Financials”,
together with the Draft Company Financials, the “Company Financials”). The Company Financials were derived in all material
respects from the books and records of the Target Companies, which books and records are, in all material respects, true, correct and
complete and have been maintained in all material respects in accordance with commercially reasonable business practices. The Company
Financials, when delivered, will have been prepared in all material respects, in accordance with GAAP consistently applied throughout
the periods covered thereby and present fairly in all material respects, the consolidated financial position, results of operations, income
(loss), changes in equity and cash flows of the Target Companies as of the dates and for the periods indicated in such Company Financials
in conformity with GAAP (except in the case of the Draft Company Financials that cover a period of less than one year for the absence
of footnote disclosures and other presentation items required for GAAP and exclude year-end adjustments which will not be material in
amount) and were derived from and accurately reflect in all material respects, the books and records of each of the Target Companies.
No Target Company has ever been subject to the reporting requirements of Sections 13(a) and 15(d) of the Exchange Act.
(b)
The Target Companies have established and maintain a system of internal controls. Such internal controls are designed to provide
reasonable assurance that (i) transactions are executed in all material respects in accordance with management’s authorization and
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability
for each Target Company’s assets.
(c)
The Company has not identified and has not received written notice from an independent auditor of (x) any significant deficiency
or material weakness in the system of internal controls utilized by the Company (other than a significant deficiency or material weakness
that has been previously disclosed in writing to Purchaser and is set forth on Section 4.06(c) of the Company Disclosure Letter),
(y) any material fraud that involves the Company’s management or other employees who have a significant role in the preparation
of financial statements or the internal controls over financial reporting utilized by the Company or (z) any claim or allegation regarding
any of the foregoing.
(d)
There are no outstanding loans or other extensions of credit made by any Target Company to any executive officer (as defined in
Rule 3b-7 under the Exchange Act) or director of any Target Company.
Section 4.07
Undisclosed Liabilities. There is no liability, debt or obligation (absolute, accrued, contingent or otherwise) of any
Target Company of a type required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP, except for liabilities,
debts and obligations: (a) provided for in, or otherwise reflected or reserved for on the Company Financials or disclosed in the notes
thereto; (b) incurred in the ordinary course of the operation of business of the Company since the date of the most recent balance sheet
included in the Company Financials; (c) incurred in connection with the Transactions; or (d) which would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.
Section 4.08
Absence of Certain Changes. Except as set forth on Section 4.08 of the Company Disclosure Letter, and for activities
conducted in connection with this Agreement and the transactions contemplated hereby, since June 30, 2024 through the date of this Agreement,
(a) each Target Company has conducted its business in the ordinary course of business consistent with past practice, (b) there has not
been any Company Material Adverse Effect, and (c) no Target Company has taken any action or committed or agreed to take any action that
would be prohibited by Section 6.02(b) (without giving effect to Section 6.02(b) of the Company Disclosure Letter) if such
action were taken on or prior to the Closing without the consent of the Purchaser.
Section 4.09
Compliance with Laws. Provided that this Section 4.09 shall not apply with respect to the matters covered by
Section 4.25:
(a)
Each Target Company has, during the past five (5) years, complied with, and is not currently in violation of, any applicable Law
with respect to the conduct of its business, or the ownership or operation of its business, except for failures to comply or violations
which, individually or in the aggregate, have not been and would not reasonably expected to be, material to the Target Companies, taken
as a whole. Except as disclosed on Section 4.09 of the Company Disclosure Letter, no written, or to the Knowledge of the Company,
oral notice of non-compliance with any applicable Law has been received that, individually or in the aggregate, would reasonably be expected
to be material to the Target Companies, taken as a whole.
(b)
Each Target Company is in possession of all franchises, grants, authorizations, licenses, permits, consents, certificates, approvals
and orders, or other Consents from Governmental Authorities and/or third Persons (the “Approvals”) necessary to own,
lease and operate the properties it purports to own, operate or lease and to carry on its business as it is now being conducted and is
in compliance with all terms and conditions of such Approvals, in each case, except where the failure to have such Approvals or be in
compliance therewith, individually or in the aggregate, have not been and would not reasonably be expected to be, material to the Target
Companies, taken as a whole.
Section 4.10
Government Contracts. Section 4.10 of the Company Disclosure Letter sets forth a list of each Contract with a
Governmental Authority in existence as of the date hereof that involves aggregate payments to the Target Companies that are reasonably
expected to be in excess of $500,000 (each, a “Material Current Government Contract”). Each Material Current Government
Contract was legally awarded to the Target Companies, as applicable. Except as would not reasonably be expected to be material to the
Target Companies, taken as a whole, and except for any Material Current Government Contract that is terminated or expires following the
date hereof in accordance with its terms, all Material Current Government Contracts are: (i) a legal, valid binding obligation of the
Target Companies, as applicable; and (ii) in full force and effect and enforceable against the Target Companies, as applicable, in accordance
with its terms, in each case subject to the Enforceability Exceptions.
Section 4.11
Company Permits. Each Target 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 any Target Company), holds all material Permits required
to own, lease and operate its assets and properties as presently owned, leased or operated (collectively, the “Company Permits”).
The Company has made available to the Purchaser true, correct and complete copies of all the Company Permits, all of which are listed
on Section 4.11 of the Company Disclosure Letter. To the Knowledge of the Company, each Company Permit is in full force and effect
and will upon its termination or expiration will be timely renewed or reissued upon terms and conditions substantially similar to its
existing terms and conditions and there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened, that seek the
revocation, cancellation, limitation, suspension, restriction, adverse modification or termination of any Company Permit. Each Target
Company has at all times operated in material compliance with all Company Permits applicable to such Target Company.
Section 4.12
Litigation. Except as described on Section 4.12 of the Company Disclosure Letter, there is no (a) Legal Proceeding
of any nature currently pending or, to the Knowledge of the Company, threatened, against any Target Company or any of its properties or
assets, or, to the Knowledge of the Company, any of the directors or officers of any Target Company with regard to their actions as such,
in which the reasonably expected damages are in excess of $1,000,000 or which otherwise is reasonably expected to result in an Order for
specific performance, an injunction or other equitable relief; (b) to the Knowledge of the Company, there are no pending or threatened,
audits, examinations or investigations by any Governmental Authority against any Target Company that, individually or in the aggregate,
would reasonably be expected to be material to the Target Companies, taken as a whole; (c) pending or threatened in writing Legal Proceedings
by any Target Company against any third party that, individually or in the aggregate, would reasonably be expected to be material to the
Target Companies, taken as a whole; (d) settlements or similar agreements that impose any material ongoing obligations or restrictions
on any Target Company that, individually or in the aggregate, would reasonably be expected to be material to the Target Companies, taken
as a whole; and (e) Orders imposed or, to the Knowledge of the Company, threatened to be imposed upon any Target Company or any of their
respective properties or assets, or, to the Company’s Knowledge, any of the directors or officers of any Target Company with regard
to their actions as such that, individually or in the aggregate, would reasonably be expected to be material to the Target Companies,
taken as a whole.
Section 4.13
Material Contracts.
(a)
Section 4.13(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all Contracts described
in clauses (i) through (xviii) below, to which, as of the date of this Agreement, any Target Company is a party or by which
any Target Company, or any of its properties or assets are bound or affected (each Contract required to be set forth on Section 4.13(a)
of the Company Disclosure Letter, a “Company Material Contract”). True, correct, complete copies of the Company Material
Contracts, including amendments thereto, have been delivered or made available to the Purchaser. The Company Material Contracts include:
(i)
Each Contract that contains covenants that limit the ability of any Target Company (or purports to bind any Affiliate thereof)
(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, including
any non-competition 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)
Each joint venture Contract, profit-sharing agreement, partnership, limited liability company agreement with a third party or other
similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(iii)
Each Contract that 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)
Each Contract that is reasonably anticipated to involve the acquisition or disposition, directly or indirectly (by merger or otherwise),
of assets with an aggregate value in excess of $500,000 (other than in the ordinary course of business consistent with past practice)
or shares or other equity interests of any Target Company or another Person;
(v)
Each Contract for the acquisition of any Person or any business division thereof or the disposition of any material assets of any
Target Company (other than in the ordinary course of business), in each case, whether by merger, purchase or sale of stock or assets or
otherwise (other than Contracts for the purchase or sale of inventory or supplies entered into in the ordinary course of business) occurring
in the last three (3) years and/or relating to pending or future acquisitions or dispositions, in each case, involving aggregate payments
in excess of $500,000;
(vi)
Each obligation to make payments in excess of $1,000,000, contingent or otherwise, arising out of the prior acquisition of the
business, assets or stock of other Persons;
(vii)
Each lease, rental agreement, installment and conditional sale agreement, or other Contract that, in each case, (A) provides for
the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property, and (B) involves
aggregate annual payments in excess of $400,000 for agreements related to real property and $1,000,000 for agreements related to personal
property;
(viii)
Each Contract that by its terms, individually or with all related Contracts, that is reasonably anticipated to call for aggregate
payments or receipts by the Target Companies under such Contract or Contracts of at least $1,000,000 per year or $5,000,000 in the aggregate;
(ix)
Each Contract with any Top Customer or Top Supplier (other than purchase orders, invoices, statements of work and non-disclosure
or similar agreements entered into in the ordinary course of business consistent with past practice that do not contain any material terms
relating to the Contract underlying the applicable Top Customer or Top Supplier relationship);
(x)
Each collective bargaining (or similar) agreement or Contract between the Target Company on one hand, and any labor union or other
body representing employees of the Target Company on the other hand;
(xi)
Each Contract that is reasonably anticipated to obligate the Target Companies to provide continuing indemnification or a guarantee
of obligations of a third party after the date hereof in excess of $1,000,000;
(xii)
Each Contract that is between any Target Company and any directors, officers or employees of a Target Company that provide for
change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the Transactions;
(xiii)
Each Contract that obligates the Target Companies to make any capital commitment or expenditure in excess of $1,000,000 (including
pursuant to any joint venture);
(xiv)
Each Contract that relates to a material settlement entered into within three (3) years prior to the date of this Agreement or
under which any Target Company has outstanding obligations (other than customary confidentiality obligations) in excess of $1,000,000;
(xv)
Any Contract that provides another Person (other than another Target Company or any manager, director or officer of any Target
Company) with a power of attorney to act on behalf of any Target Company or to act on behalf of any manager, director or officer of any
Target Company with respect to any Target Company;
(xvi)
Each Contract which (A) contains any assignment or any covenant not to assert or enforce, any Intellectual Property material to
the business of any Target Company; (B) pursuant to which any Intellectual Property material to the business of any Target Company is
or was developed by, with or for any Target Company; or (C) pursuant to which any of the Target Companies either (1) grants to a third
Person (I) a license, immunity, or other right in or to any Intellectual Property material to the business of any Target Company or (II)
an exclusive license, immunity, or other right in or to any Owned Intellectual Property, or (2) is granted by a third Person a license,
immunity, or other right in or to any Intellectual Property or IT Assets material to the business of any Target Company, in the case of
both (1) and (2) excluding (unless they otherwise qualify as Company Material Contracts under a different subsection of this Section
4.13): (w) non-exclusive licenses of Owned Intellectual Property granted to suppliers, customers or end users in the ordinary course
of business; (x) licenses of Open Source Software; (y) Off-the-Shelf Software; and (z) invention assignment and confidentiality agreements
with employees and contractors on standard forms made available to Purchaser and without any material deviations or exceptions;
(xvii)
Each Contract involving transactions with an Affiliate of any Target Company (other than employment agreements, employee confidentiality
and invention assignment agreements, equity or incentive equity documents and Organizational Documents); and
(xviii)
Each Contract that is a settlement, conciliation, or similar agreement with any Governmental Authority or pursuant to which any
Target Company will have material outstanding obligations after the date hereof, and excluding any such agreements that are releases entered
into with former employees or independent contractors in the ordinary course of business.
(b)
Except as disclosed in Section 4.13(b) of the Company Disclosure Letter, with respect to each Company Material Contract
or for any Company Material Contract that is terminated or expires following the date hereof in accordance with its terms: (i) such Company
Material Contract is valid and binding and enforceable in all respects against the Target 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) except as would not reasonably be expected to be material to the Target Companies, taken as a whole
the consummation of the transactions contemplated by this Agreement will not affect the validity or enforceability of any Company Material
Contract; (iii) no Target Company is in breach of or default under, in any material respect, and, to the Knowledge of the Company, no
event has occurred that with the passage of time or giving of notice or both would constitute a material breach of or default under by
any Target 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, to the
Knowledge of the Company 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 any Target Company, under such Company Material Contract;
(v) no Target Company has 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 any Target Company in any
material respect; and (vi) no Target Company has waived any material rights under any such Company Material Contract.
Section 4.14
Intellectual Property.
(a)
Section 4.14(a)(i) of the Company Disclosure Letter sets forth a true, accurate, and complete list of: all U.S. and foreign
registered or issued Intellectual Property and applications owned by a Target Company (“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, (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. Each item of Company Registered IP is subsisting, and to the Knowledge of the Company, valid and enforceable.
Each Target Company owns, free and clear of all Liens (other than Permitted Liens or any Liens set out on Section 4.14(a)(ii) of
the Company Disclosure Letter), has valid and enforceable rights in, and has the right to use, sell, license, transfer or assign, all
Intellectual Property currently used, licensed or held for use by such Target Company, and previously used or licensed by such Target
Company. 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 Target Companies have obtained valid present assignments of inventions
from each inventor. Except as set forth on Section 4.14(a)(iii) of the Company Disclosure Letter, all Company Registered IP is
owned exclusively by the applicable Target Company without obligation to pay royalties, licensing fees or other fees, or otherwise account
to any third party with respect to such Company Registered IP, and such Target Company has recorded assignments of all Company Registered
IP.
(b)
Each Target Company has a valid and enforceable written license or other valid right to use all other Company IP, including Intellectual
Property that is the subject of the inbound Company IP Licenses applicable to such Target Company. The inbound Company IP Licenses include
all of the licenses, sublicenses and other agreements or permissions necessary to operate the Target Companies as presently conducted.
Each Target Company has performed all obligations imposed on it in the Company IP Licenses, has made all payments required to date, and
such Target 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. The continued use by the Target Companies
of the Intellectual Property that is the subject of any Company IP License in the same manner that it is currently being used is not restricted
by any applicable license of any Target Company. No Target Company is party to any Contract that requires a Target Company to assign to
any Person any or all of its rights in any Intellectual Property developed by a Target Company under such Contract.
(c)
No Legal Proceeding has been made in the last six (6) years or is pending or, to the Company’s Knowledge, threatened against
a Target Company that challenges the validity, enforceability, ownership, or right to use, sell, license or sublicense, or that otherwise
relates to, any Owned Intellectual Property, nor, to the Knowledge of the Company, is there any reasonable basis for any such Legal Proceeding.
No Target Company has received any written or, to the Knowledge of the Company, oral notice or claim asserting that any infringement,
misappropriation, violation, dilution or unauthorized use of the Intellectual Property of any other Person is or may be occurring or has
or may have occurred, as a consequence of the business activities of any Target Company, nor to the Knowledge of the Company is there
a reasonable basis therefor. There are no Orders to which any Target Company is a party or is otherwise bound that (i) restrict the rights
of a Target Company to use, transfer, license or enforce any Intellectual Property owned by a Target Company, (ii) restrict the conduct
of the business of a Target Company in order to accommodate a third Person’s Intellectual Property, or (iii) other than the outbound
Company IP Licenses, grant any third Person any right with respect to any Intellectual Property owned by a Target Company. No Target Company
is currently infringing, or has, in the past, 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 Owned Intellectual Property or otherwise in connection with
the conduct of the respective businesses of the Target Companies. To the Company’s Knowledge, no third party is currently, or in
the past six (6) years has infringed upon, misappropriated or otherwise violated any Owned Intellectual Property.
(d)
No current or former officers, employees, independent contractors, or other third parties employed or engaged by a Target Company
has any ownership interest in any Owned Intellectual Property and no Person has claimed or asserted in writing any ownership interest
or other rights in or to any Owned Intellectual Property. To the Company’s Knowledge, there has been no violation of a Target Company’s
policies or practices related to protection of Company IP or any confidentiality or nondisclosure Contract relating to the Intellectual
Property owned by a Target Company. To the Company’s Knowledge, none of the employees of any Target Company is obligated under any
Contract, or subject to any Order, that would materially interfere with the use of such employee’s reasonable efforts to promote
the interests of the Target Companies, or that would conflict with the business of any Target Company as presently conducted. Each Target
Company has taken commercially reasonable efforts and security measures in order to maintain, preserve and protect all material Owned
Intellectual Property, including to protect the secrecy, confidentiality and value of the material Company IP. All Persons who have participated
in or contributed to the creation or development of any material Owned Intellectual Property have executed written agreements pursuant
to which all of such Person’s right, title and interest in and to any such Owned Intellectual Property has been irrevocably assigned
(by a present tense assignment) to one or more of the Target Companies (or all such right, title, and interest vested in one or more of
the Target Companies by operation of Law).
(e)
Each Target Company is in all material respects in compliance with all licenses governing any Open Source Software that is incorporated
into, used, intermingled, or bundled with any material Company Software. No Open Source Software is or has been included, incorporated
or embedded in, linked to, combined, made available or distributed with, or used in the development, maintenance, operation, delivery
or provision of any Company Software in a manner that requires any Target Company to: (i) disclose, contribute, distribute, license or
otherwise make available to any Person (including the open source community) any source code to such Company Software; (ii) license any
such Company Software or other material Owned Intellectual Property for making modifications or derivative works; (iii) disclose, contribute,
distribute, license or otherwise make available to any Person any such Company Software or other material Owned Intellectual Property
for no or nominal charge; or (iv) grant a license to, or refrain from asserting or enforcing any of, its Patents (“Copyleft Terms”).
(f)
No government funding, resources or assistance, nor any facilities of a university, college, other educational institution, or
similar institution, or research center or private or commercial third parties in their respective research and development activities
were used by any Target Company in the development of any Owned Intellectual Property. No Governmental Authority has any (i) ownership
interest or exclusive license in or to any Owned Intellectual Property, (ii) “unlimited rights” (as defined in 48 C.F.R. §
52.227-14 and in 48 C.F.R. § 252.227-7013(a)) in or to any of the Company Software, or (iii) “march in rights” (pursuant
to 35 U.S.C. § 203) in or to any Patents constituting material Owned Intellectual Property. No Target Company is a member of or party
to, or has participated in any patent pool, industry standards body, trade association or other organization pursuant to the rules of
which any Target Company is obligated to license or offer to license any existing or future Owned Intellectual Property to any Person.
(g)
To the Knowledge of the Company, no Person has obtained unauthorized access to information, data (including personally identifiable
information), IT Assets or Software in the possession of a Target Company or in their custody, control, or otherwise held or processed
on their behalf nor has there been any loss, damage, disclosure, use, breach of security, or other compromise of the security, confidentiality
or integrity of such IT Assets, Software, information, or data. To the Knowledge of the Company, no Target Company has experienced any
material information security incident that has compromised the integrity or availability of the information technology, operational technology,
or software applications the Target Companies own, operate, or outsource or the information and data thereon. Except as would not reasonably
be expected to have a Company Material Adverse Effect, no material written or oral complaint, or notice of any claims or investigations,
relating to an improper use or disclosure of, or a breach in the security of, any such information or data or relating to any information
security-related incident has been received by a Target Company nor has a Target Company notified in writing, or been required by applicable
Laws or Contract to notify in writing, any person or entity of any personal data or information security-related incident.
(h)
The consummation of any of the Transactions will not result in (i) any material violation of any data privacy or cybersecurity
laws; or (ii) the material breach, material modification, cancellation, termination, suspension of, or acceleration of any payments with
respect to, or release of source code because of (a) any Contract providing for the license or other use of material Intellectual Property
owned by a Target Company, or (b) any Company IP License.
Section 4.15
Taxes and Returns. Except in each case as set forth on Section 4.15 of the Company Disclosure Letter:
(a)
Each Target Company (i) has or will have timely filed, or caused to be timely filed, all income and other material Tax Returns
required to be filed by it (taking into account all valid extensions of time to file), and all such Tax Returns are true, accurate, correct
and complete in all material respects, and (ii) has timely paid, collected, withheld or remitted, or caused to be timely paid, collected,
withheld or remitted, all income and other material Taxes required to be paid, collected, withheld or remitted by it, whether or not such
Taxes are shown as due and payable on any Tax Return. Each Target Company has complied in all material respects with all applicable Laws
relating to Tax.
(b)
There is no Legal Proceeding currently pending or, to the Knowledge of the Company, threatened against a Target Company by a Governmental
Authority in a jurisdiction where the Target Company does not file any Tax Returns or a particular type of Tax Return or pays any Tax
or a particular type of Tax that it is or may be subject to such Tax or required to file such Tax Return in that jurisdiction.
(c)
There is no claim, assessment, audit, examination, investigation or other Legal Proceeding that is pending, or to the Knowledge
of the Company, threatened against a Target Company in respect of any Tax, and no Target Company has been notified in writing of any proposed
Tax claim, deficiency or assessment against it. No Target Company is currently contesting any material Tax liability before any Governmental
Authority.
(d)
There are no Liens with respect to any Taxes upon any Target Company’s assets, other than Permitted Liens.
(e)
Each Target Company has timely and properly collected or withheld all Taxes required to be collected or withheld by it, timely
remitted such Taxes to the appropriate Governmental Authorities, and otherwise complied in all material respects with all applicable withholding
and related reporting requirements with respect to such Taxes.
(f)
No Target Company has requested or consented to any waivers or extensions of any applicable statute of limitations for the collection
or assessment of any Taxes, which waiver or extension (or request thereof) is outstanding or pending.
(g)
No Target Company 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) beginning after the Closing Date, as a result of: (i) an installment sale or open
transaction disposition that occurred on or prior to the Closing Date; (ii) any change in method of accounting on or prior to the
Closing Date, including by reason of the application of Section 481 of the Code (or any analogous provision of state, local or foreign
Law) or the use of an improper method of accounting on or prior to the Closing Date; (iii) any prepaid amounts received or deferred revenue
realized or received on or prior to the Closing Date; (iv)any intercompany transaction described in Treasury Regulations under
Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Law); or (v) any “closing
agreement” pursuant to Section 7121 of the Code or any other agreement or arrangement with a Governmental Authority relating
to Taxes.
(h)
No Target Company has participated in or been a party to, or sold, distributed or otherwise promoted, any “reportable transaction,”
as defined in Treasury Regulations Section 1.6011-4 (or any similar or corresponding provision of state, local or foreign Law).
(i)
No Target Company has been a member of an affiliated, combined, consolidated, unitary or other group for Tax purposes. No Target
Company has any Liability or potential Liability for the Taxes of another Person (other than another Target Company) (i) pursuant to Treasury
Regulations Section 1.1502-6 (or any similar or corresponding provision of U.S. state or local Tax Law) or under any other applicable
Tax Law, (ii) as a transferee or successor, or (iii) by Contract, indemnity or otherwise (excluding customary commercial Contracts entered
into in the ordinary course of business the primary purpose of which is not the sharing of Taxes). No Target Company is a party to or
bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement, arrangement or practice
(excluding customary commercial Contracts entered into in the ordinary course of business the primary purpose of which is not the sharing
of Taxes) with respect to Taxes.
(j)
No Target Company has requested, or is it the subject of or bound by any private letter ruling, technical advice memorandum, closing
agreement or similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes, nor is any such request
pending or outstanding.
(k)
The Company is, and has at all times since February 11, 2024 been, classified
as a C corporation for U.S. federal state and local income tax purposes. The Company was at all times since its formation until
and through February 10, 2024, classified as a disregarded entity or partnership for U.S. federal income tax purposes. The
U.S. federal income tax classification of each of the Company’s Subsidiaries is as set forth on Section 4.15(k) of the Company
Disclosure Letter.
(l)
No Target Company has ever owned (directly or indirectly) (i) any interest in a “controlled foreign corporation” (within
the meaning of Section 957 of the Code) or (ii) any interest in a “passive foreign investment company” (within the meaning
of Section 1297 of the Code).
(m)
No Target Company has ever had a permanent establishment, office, branch, fixed place of business or other taxable presence in
any country other than the country of its organization.
(n)
No Target Company has (i) made an election to defer the payment of any “applicable employment taxes” (as defined in
Section 2302(d)(1) of the CARES Act) pursuant to Section 2302 of the CARES Act or made any such deferral or election pursuant to the presidential
memorandum regarding Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster signed on August 8, 2020 or (ii) obtained
a loan under the Paycheck Protection Program under the CARES Act, in each case, that remains outstanding.
(o)
No Target Company has been a party to any transaction that was purported or intended to be treated as a distribution of stock qualifying,
in whole or in part, for tax-free treatment under Section 355 of the Code (or any corresponding or similar provision of U.S. state or
local Tax Law) within the past three (3) years.
(p)
No Target Company has knowingly taken any action, nor is aware of any fact or circumstance, that would reasonably be expected to
prevent the relevant portions of the Transactions from qualifying for their respective Intended Tax Treatments.
Section 4.16
Real Property.
(a)
Section 4.16(a) of the Company Disclosure Letter sets forth a true, correct, and complete listing of all real property owned
by the Target Companies (the “Company Owned Properties”), including the street address and owner thereof. The Company
has made available to the Purchaser true, correct, and complete copies of the deeds and other instruments in its possession by which the
applicable Target Company acquired such Company Owned Properties, together with any title insurance policies, the most recent title reports
and surveys with respect to such Company Owned Property to the extent such items are in its possession. The applicable Target Company
has good and indefeasible fee simple title to each such Company Owned Property free and clear of all Liens (other than Permitted Liens).
Other than the Company Owned Properties, the Target Companies do not own any real property. There are no parties in possession, as tenants,
licensees or, to the Knowledge of the Company, otherwise, or parties having any option, right of first offer or first negotiation or right
of first refusal or other similar rights granted to third parties to purchase or lease the Company Owned Properties or any portion thereof
or interest therein. There is no condemnation or eminent domain proceedings pending or, to the Knowledge of the Company, threatened with
respect to any of the Company Owned Properties or any portion thereof.
(b)
Section 4.16(b) of the Company Disclosure Letter contains a true, correct and complete list of all premises currently leased
or subleased or otherwise used or occupied (but not owned) by a Target Company for the operation of the business of a Target Company (the
“Company Leased Real Properties”), and of all current leases, lease guarantees, agreements and documents related thereto,
including all amendments, terminations and modifications thereof, waivers thereto or guarantees thereof (collectively, the “Company
Real Property Leases”), including the street address thereof (if applicable) and parties to such Company Real Property Leases.
The Company has provided to the Purchaser a true and complete copy of each of the Company Real Property Leases. Each Company Real Property
Lease is valid and binding and enforceable in all respects against the Target 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). With respect to each Company Real Property Lease, (i) no Target Company is in breach of or default, in any material respect,
under any Company Real Property Lease, (ii) no event has occurred and no circumstance exists which, if not remedied, and whether with
or without notice or the passage of time or both, would result in such a material breach or default by a Target Company and, (iii) to
the Knowledge of the Company, no other party to such Company Real Property Lease 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 any Target Company, under such Company Real Property Lease. No Target Company
has leased, licensed or otherwise granted use or occupancy rights with respect to any Company Leased Real Property or any portion thereof
to any third party. No party to any Company Real Property Lease has exercised any termination rights with respect thereto. To the Knowledge
of the Company there is no condemnation or eminent domain proceedings pending or threatened with respect to any of the Company Leased
Real Properties or any portion thereof.
Section 4.17
Personal Property. Each item of Personal Property which is currently owned, used or leased by a Target Company with
a book value or fair market value of greater than $500,000 is set forth on Section 4.17 of the Company Disclosure Letter, 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 Section 4.17 of the Company Disclosure Letter, all such items of Personal Property are in operating condition
(reasonable wear and tear excepted), as are reasonably suitable for their intended use in the business of the Target Companies. The Company
has provided to the Purchaser a true and complete copy of each of the Company Personal Property Leases. To the Knowledge of the Company,
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 a Target Company or any other party under any of the Company
Personal Property Leases, and no Target Company has received notice of any such condition.
Section 4.18
Title to Assets. Each Target Company has good and marketable title to, or a valid leasehold interest in or right to
use, or in the case of Company Owned Property good and indefeasible title to, its respective material tangible and intangible assets that
are necessary to conduct the business of the Target Company as presently conducted, free and clear of all Liens other than (a) Permitted
Liens, (b) the rights of lessors under material leasehold interests and (c) Liens set forth on Section 4.18(a) of the Company Disclosure
Letter. Except as set forth on Section 4.18(b) of the Company Disclosure Letter, the material assets (including Intellectual Property
rights and contractual rights) of the Target Companies constitute all of the assets, rights and properties that are necessary, in all
material respects, for the operation of the businesses of the Target Companies in all material respects as they are now conducted. The
material tangible assets or personal property of the Target Companies have been maintained in all material respects in accordance with
generally accepted industry practice, are in good working order and condition, except for ordinary wear and tear and as would not, individually
or in the aggregate, reasonably be expected to be material to the Target Companies, taken as a whole.
Section 4.19
Employee Matters.
(a)
The Target Companies are not and have never been a party to any collective bargaining agreement or other Contract covering any
group of employees with any labor organization or other representative of any of the employees of such Target Company, and to the Knowledge
of the Company, there are not, and in the past three (3) years, there have not been, any activities or proceedings of any labor union
to organize or represent such employees. In the past three (3) years, 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. Except
as set forth on Section 4.19(a) of the Company Disclosure Letter, no current officer or other key employee of the Target Company,
as of the date of this Agreement, has provided the Target Company with written notice of his or her intention to terminate his or her
employment within the one (1) year period following the Closing.
(b)
Except as set forth on Section 4.19(b) of the Company Disclosure Letter, the Target Companies are, and, within the past
three (3) years have been, in compliance 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, family
and medical leave, and employee terminations, except for failures to comply which, individually or in the aggregate, have not been and
would not reasonably expected to be, material to the Target Companies, taken as a whole. No Target Company has received written or, to
the Knowledge of the Company, oral notice that there is any pending Legal Proceeding involving unfair labor practices against any Target
Company. There are no material Legal Proceedings pending or, to the Knowledge of the Company, threatened against any Target 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)
No employee is a party to a written employment arrangement with a Target Company and each is employed “at will”, and
no Target Company has any 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 Knowledge of the Company, oral agreement, or commitment or any applicable Law, custom, trade
or practice.
(d)
In the past three (3) years, the Target Companies have not received (i) notice of any unfair labor practice charge or material
complaint pending or, to the Knowledge of the Company, threatened before the National Labor Relations Board against them, (ii) notice
of any material grievances or arbitrations arising out of any collective bargaining agreement to which any Target Company is a party,
or (iii) notice of the intent of any Governmental Authority responsible for the enforcement of labor, employment, wages and hours of work,
child labor, or immigration to conduct an investigation with respect to or relating to them or notice that such investigation is in progress.
(e)
To the Knowledge of the Company, no present or former employee at level of vice president or above of any Target Company is in
material violation of (i) any restrictive covenant or nondisclosure obligation to such Target Company or (ii) any restrictive covenant
or nondisclosure obligation to a former employer of any such individual relating to (A) the right of any such individual to work for or
provide services to such Target Company or (B) the knowledge or use of trade secrets.
(f)
In the past three (3) years, the Target Companies have not engaged in layoffs, furloughs or employment terminations sufficient
to trigger application of the Worker Adjustment and Retraining Notification Act or any similar state or local law.
(g)
In the past three (3) years, (i) no allegations of sexual harassment or sexual misconduct have been made in writing, or, to the
Knowledge of the Company, threatened to be made against or involving any current or former officer, director or other employee at the
level of Vice President or above by any current or former officer, employee or individual service provider of any Target Company, and
(ii) the Target Companies have not entered into any settlement agreements resolving, in whole or in part, allegations of sexual harassment
or sexual misconduct by any current or former officer, director or other key employee.
Section 4.20
Benefit Plans.
(a)
Set forth on Section 4.20(a) of the Company Disclosure Letter is a true and complete list of each material Company Benefit
Plan. With respect to each Company Benefit Plan, all contributions that are due have been made or, to the extent not yet due, are properly
accrued in accordance with GAAP on the Company Financials, in all material respects. The Target Companies are not required to provide
employee benefits pursuant to a collective bargaining agreement or other Contract covering any group of employees, labor organization
or other representative of any of the employees.
(b)
Each Company Benefit Plan is and has been operated, administered, maintained, and funded at all times in compliance with its terms
and 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 received a favorable determination letter from the IRS to be so qualified (or
is based on a prototype plan which has received a favorable opinion letter upon which the Target Companies are entitled to rely) or (ii)
the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted
by applicable Law. To the Knowledge of the Company, no event has occurred or circumstance exists which could 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 the Company has provided to Purchaser accurate and complete copies, if applicable, of:
(i) all Company Benefit Plan documents, service agreements and related trust agreements or annuity Contracts (including any amendments,
modifications or supplements thereto); (ii) the most recent summary plan descriptions and material modifications thereto; (iii) the three
(3) most recent Form 5500s, 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
(or opinion letter) received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material communications with
any Governmental Authority within the last three (3) years.
(d)
With respect to each Company Benefit Plan: (i) no Legal Proceeding is pending, or to the Knowledge of the Company, threatened (other
than routine claims for benefits arising in the ordinary course of administration and administrative appeals of denied claims); (ii) 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 (iii) all contributions and premiums that are due have been made in all material
respects as required under ERISA or have been fully accrued in all material respects on the Company Financials in accordance with GAAP.
(e)
None of the Target Companies nor any ERISA Affiliate currently maintains, or within the preceding six (6) years has maintained
or contributed to, a Company Benefit Plan which 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 Target Companies have not incurred
any Liability, could not otherwise 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. The Target Companies do not and have not ever maintained, and are not and have
never been required to contribute to or otherwise participate in, (i) a multiple employer welfare arrangement or voluntary employees’
beneficiary association as defined in Section 501(c)(9) of the Code or (ii) a “funded welfare plan” within the meaning of
Section 419 of the Code.
(f)
Except as set forth on Section 4.20(f) of the Company Disclosure Letter, the consummation of the Transactions will not,
either alone or in combination with another event, (i) entitle any current or former employee, officer or other service provider of the
Target Companies to any severance pay or increase in severance pay or any other compensation payable by the Target Companies, (ii) accelerate
the time of payment, funding or vesting, or increase the amount of compensation due to any such employee, officer or other individual
service provider by the Target Companies, (iii) directly or indirectly cause the Target Companies to transfer or set aside any assets
to fund any material benefits under any Company Benefit Plan, (iv) otherwise give rise to any material liability under any Company Benefit
Plan, or (v) limit or restrict the right to merge, materially amend, terminate or transfer the assets of any Company Benefit Plan on or
following the Closing. The consummation of the transactions contemplated hereby will not, either alone or in combination with another
event, result in any “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan provides for a Tax
gross-up, make whole or similar payment, including with respect to the Taxes imposed under Sections 409A or 4999 of the Code.
(g)
Except as set forth on Section 4.20(g) of the Company Disclosure Letter or to the extent required by Section 4980B of the
Code or similar state Law, the Target Companies do not provide health or welfare benefits to any former or retired employee and are not
obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment
or service.
(h)
Each Company Benefit Plan can be terminated at any time without resulting in any material Liability to the Target Companies, the
Purchaser, Merger Sub or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes
or any other charges or liabilities, other than Liabilities with respect to participant accrued benefits through the effective date of
such termination in accordance with the terms of such plan and ordinary administration costs typically incurred in a termination event.
(i)
Except as would not, individually or in the aggregate, reasonably be expected to be material to the Target Companies, taken as
a whole, each Company Benefit Plan that is subject to Section 409A of the Code has been administered in compliance, and is in documentary
compliance, in all respects with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official
guidance issued thereunder.
Section 4.21
Environmental Matters. Except as set forth in Section 4.21 of the Company Disclosure Letter:
(a)
Each Target Company and its respective properties and facilities are and have, during the time that the applicable Target Company
has owned, operated or leased such property or facility, been in compliance in all material respects with all applicable Environmental
Laws, including obtaining, maintaining in good standing, and complying with all Permits required for their business and operations under
any Environmental Laws (“Environmental Permits”).
(b)
No Legal Proceeding is pending or, to the Knowledge of the Company, threatened against any Target Company or their respective assets
or properties alleging a material violation of, or material liability under, any Environmental Law or Environmental Permit, including
with respect to the revocation, modification or termination of any Environmental Permits, and, to the Knowledge of the Company, no facts,
circumstances, or conditions currently exist that would reasonably be expected to adversely affect compliance with Environmental Laws
and Environmental Permits or require material capital expenditures to achieve or maintain continued compliance with Environmental Laws
and Environmental Permits.
(c)
No Target Company or any of its respective properties, facilities or operations, is the subject of any outstanding material Order
or Contract with any Governmental Authority or other Person in respect of any (i) Environmental Law, (ii) Remedial Legal Proceeding, or
(iii) Release or threatened Release of a Hazardous Material. No Target Company has assumed, contractually or by operation of Law, any
material Environmental Liabilities.
(d)
No Target Company has 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 Liability or obligation under applicable Environmental Laws. To the Knowledge of the Company,
no fact, circumstance, or condition exists in respect of any Target Company or any property currently or formerly owned, operated, or
leased by any Target Company, or any other property that could reasonably be expected to result in a Target Company incurring any material
Environmental Liability.
(e)
No Target Company has received written notification of any investigation of the business, operations, or currently or formerly
owned, operated, or leased property of a Target Company that could lead to the imposition of any material Liens or Environmental Liabilities
and, to the Knowledge of the Company, no such investigations are pending or threatened in writing.
(f) To the
Knowledge of the Company, no Person has Released any Hazardous Material at, on, or under any facility currently or formerly owned or
operated by any Target Company or any third-party site, in each case in a manner that would be reasonably likely to give rise to a
material Environmental Liability of the Target Companies, including for Remedial Legal Proceeding costs, investigation costs,
cleanup costs, response costs, corrective action costs, personal injury, property damage, natural resources damages, and attorney
fees.
(g)
There are no (i) underground storage tanks, (ii) asbestos-containing materials, or (iii) equipment containing polychlorinated biphenyls
located at any of the properties of a Target Company.
(h)
The Company has provided to the Purchaser all material written environmental reports, audits, assessments, liability analyses,
memoranda and studies in the possession of, or conducted by, the Target Companies and concerning the environmental condition of any properties
of the Target Company, Environmental Liabilities or compliance with Environmental Laws.
Section 4.22
Transactions with Related Persons. Except as set forth on Section 4.22 of the Company Disclosure Letter, and
except for in the case of any employee, officer or director, of any employment Contract or Company Benefit Plans made in the ordinary
course of business consistent with past practice or except as set forth in the Company Financials, no Target Company is a party to any
transaction or Contract with any (a) present or former executive officer or director of any of the Target Companies, (b) beneficial owner
(within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the capital stock or equity interests of any of the Target
Companies or (c) any Affiliate, “associate” or any member of the “immediate family” (as such terms are respectively
defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the foregoing; provided that in each case of the foregoing, excluding
any transaction or Contract between or among the Company’s Subsidiaries or between or among the Company and any of its Subsidiaries.
Except as set forth in the Company Financials or as set forth on Section 4.22 of the Company Disclosure Letter: (x) to the Knowledge
of the Company, no Related Person or any Affiliate of a Related Person has, directly or indirectly, a material economic interest in any
Contract with any of the Target Companies (other than such Contracts that relate to any such Person’s ownership of the Company Units
or other equity interests of any Target Company as set forth on Section 4.03(a) of the Company Disclosure Letter or such Person’s
employment or consulting arrangements with the Target Companies), and (y) the assets of the Target Companies do not include any receivable
or other obligation from a Related Person, and the liabilities of the Target Companies do not include any payable or other obligation
or commitment to any Related Person.
Section 4.23
Insurance.
(a)
Section 4.23(a) of the Company Disclosure Letter contains a list of, as of the date hereof, all material policies or binders
of property, fire and casualty, product liability, workers’ compensation, and other forms of insurance held by, or for the benefit
of, the business of any Target Company (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy).
As of the date hereof, all premiums due and payable under all such insurance policies have been timely paid and the Target Companies 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, subject, in each case to the Enforceability Exceptions and (ii) will continue to be legal, valid, binding,
enforceable, and in full force and effect on substantially similar terms following the Closing. No Target Company has any self-insurance
or co-insurance programs. In the past three (3) years, no Target Company has received any written notice from, or on behalf of, any insurance
carrier relating to or involving any adverse material change, notice of cancellation, termination or any change other than in the ordinary
course of business, in the conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy.
(b)
Section 4.23(b) of the Company Disclosure Letter identifies each individual insurance claim in excess of $500,000 made
by a Target Company in the past three (3) years. Each Target 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 Target Companies, taken as a whole. 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. No Target Company has made any claim against an insurance policy as to which the insurer has denied
coverage.
Section 4.24
Top Customers and Suppliers.
(a)
As of the date hereof the Company currently has no customers, including any off-takers.
(b)
Section 4.24(b) of the Company Disclosure Letter lists as of the date of this Agreement, all suppliers or manufacturers
of goods or services for the six months ended June 30, 2024 and the 12 months ended December 31, 2023 to which the Company made payments
or accrued obligations in excess of $1,000,000 (the “Top Suppliers”). To the Knowledge of the Company as of the date
hereof, no such Top Supplier has provided notice to the Target Companies (i) of its intention to cancel or otherwise terminate, or materially
reduce, its relationship with the Target Companies, taken as a whole, or (ii) that any Target Company is in material breach of the terms
of any Company Material Contract with any such Top Supplier.
(c)
Except as set forth on Section 4.24(c) of the Company Disclosure Letter, none of the Top Customers or Top Suppliers has,
as of the date of this Agreement, notified any Target Companies in writing that it is in a material dispute with the Target Companies
or their respective businesses.
Section 4.25
Certain Business Practices.
(a)
No Target Company, nor any of their respective officers or directors, nor, to the Knowledge of the Company, any of their respective
Representatives acting on their behalf, has since April 24, 2019, directly or indirectly, offered, given, paid, promised to give or pay,
or authorized the giving or payment of anything of value to (i) an official or employee of a foreign or domestic Governmental Authority;
(ii) a foreign or domestic political party or an official of a foreign or domestic political party; (iii) a candidate for foreign or domestic
political office; or (iv) any Person, in any such case under circumstances where such Target Company or Representative thereof knew, or
would have reasonably known after due and proper inquiry, that all or a portion of such thing of value would be offered, given, paid,
or promised to an official or employee of a foreign or domestic Governmental Authority, a foreign or domestic political party, an official
of a foreign or domestic political party, or a candidate for foreign or domestic political office for the purpose of influencing any act
or decision of such official, employee, or candidate to obtain or retain business or direct business to any person (in each case in violation
of any Anti-Bribery Laws). No Target Company, nor any of their respective officers and directors, nor, to the Knowledge of the Company,
any of their respective Representatives acting on their behalf, has, since April 24, 2019, directly or indirectly offered, given, paid,
promised to give or pay, or authorized the giving or payment of anything of value to any customer, supplier, or other Person who is or
may be in a position to assist or hinder any Target Company in connection with any actual or proposed transaction for the purpose of influencing
any act or decision of such customer, supplier, or other Person to obtain or retain business or direct business to any person. No Target
Company, nor any of their respective officers and directors, nor, to the Knowledge of the Company, any of their respective Representatives
acting on their behalf, has, since April 24, 2019, been subject to or conducted or initiated any internal investigation or made a voluntary,
directed, or involuntary disclosure to any Governmental Authority with respect to any alleged act or omission relating to any noncompliance
with any Anti-Bribery Laws. No Target Company, nor any of their respective officers and directors, nor, to the Knowledge of the Company,
any Representatives acting on their behalf has, since April 24, 2019, received any written notice, request, or citation from any Governmental
Authority for any actual or potential noncompliance with any Anti-Bribery Laws.
(b)
The operations of each Target Company are and have been, since April 24, 2019, conducted at all times in material compliance with
any International Trade Laws and Sanctions Laws of any jurisdiction in which any Target Company operates, and no Legal Proceeding between
the Target Company and any Governmental Authority with respect to any of the foregoing is pending or, to the Knowledge of the Company,
threatened in writing.
(c)
No Target Company nor any of their respective directors or officers, or, to the Knowledge of the Company, any other Representative
acting on behalf of a Target Company is or has been: (i) identified on any applicable sanctions-related list of designated or blocked
persons (including without limitation the Specially Designated Nationals and Blocked Persons List (“SDN List”) maintained
by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”)); (ii) located, organized,
or resident in any country, region or territory that is the subject of comprehensive territorial sanctions administered by the United
States and any other jurisdiction in which any Target Company operates (as of the date of this Agreement, Cuba, Iran, North Korea, Syria,
and the Crimea, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic regions of Ukraine) (each a “Sanctioned
Jurisdiction”); or (iii) owned, directly or indirectly, individually or in the aggregate, 50 percent or more or otherwise controlled
by any of the foregoing.
(d)
The Target Companies have, since April 24, 2019, maintained in place and implemented risk-based controls and systems designed to
promote compliance with economic sanctions administered and maintained by the U.S. government.
(e)
No Target Company has, since April 24, 2019, 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 a Sanctioned Jurisdiction
or for the purpose of financing the activities (i) of any Person currently identified on any applicable sanctions-related list of designated
or blocked persons maintained by OFAC, or (ii) in any other manner that would constitute a violation of any applicable U.S. sanctions
administered by the U.S. government.
Section 4.26
Mining.
(a)
Section 4.26(a) of the Company Disclosure Letter sets forth a true, correct, and complete list of all Mining Rights owned,
leased, operated or used by the Target Companies or otherwise forming part of the Round Top Project, and identifies which entity is entitled
to each Mining Right, and license number, area, expiry date, granting authority, counter party, and types of minerals covered for each
Mining Right (the “Company Mining Rights”). The Company Mining Rights collectively constitute all Mining Rights that
are reasonably required for the conduct of the Target Companies’ business as presently conducted.
(b)
To the Knowledge of the Company, each Company Mining Right is valid, in good standing and is not liable to forfeiture, termination,
cancellation or suspension for any currently existing reason.
(c)
The Target Companies have not received notice of any unremedied material breach by any Target Company, nor has anything occurred
or been omitted which would be a material breach by a Target Company but for the requirement of notice or lapse of time or both, of any
statutory requirement or any other material conditions relating to each Company Mining Right.
(d)
All material rent, royalties and other statutory and contractual payments due in respect of each Company Mining Right have been
paid.
(e)
The Target Companies are in exclusive possession or control of any existing rights to develop the minerals that are locatable,
subject to applicable law, located in, on or under the Round Top Project.
(f) The Target Companies
have not received notice of any conflicting Mining Rights owned by third parties which overlay with the Round Top Project.
(g)
No Target Company is party to any, and to the Knowledge of such Target Company, there is no, joint venture agreement, stockholder
agreement, partnership agreement, voting agreement, powers of attorney, co-ownership agreement, co-tenancy agreements, management agreements
or any other existing oral or written agreement of any kind which does or would have any material adverse impact on record or possessory
title to the mineral estate of the Company Mining Rights, or the access to, exploration, development or mining of same, and no other Person
has any interest in the Company Mining Rights or any right to acquire or otherwise obtain any such interest.
(h)
Except as set forth in Section 4.26(h) of the Company Disclosure Letter, there are no options, back-in rights, earn-in rights,
rights of first refusal, rights of first offer, preemptive rights, off-take rights or similar provisions or rights which would materially
affect the Target Companies’ interest in the Company Mining Rights after the Closing Date.
(i) No Target Company has
received any notice in writing from any Governmental Authority or any Person with jurisdiction or applicable authority, of any
revocation or intention to revoke the Target Companies’ interests in or file a contest action related to the Company Mining
Rights.
(j) To the Knowledge of
the Company, the Target Companies have made available to the Purchaser all material information and data pertaining to the Company
Mining Rights in their possession, including, to the extent material: mining plans and plans of operation; reclamation plans; life
of mine studies and reports; notices of intent; including those related to exploration drilling, pad and road construction; mining
exploration; land and survey records; the existence of minerals within the Mining Rights, including relevant reserve and resource
estimates; metallurgical testwork and sampling data; drill data and assay results; all reclamation and bond release information;
financial assurances for reclamation and all information concerning record, possessory, legal or equitable title to the Mining
Rights which is within its possession or control. Set forth in Section 4.26(j) of the Company Disclosure Letter is a list of
all mining title opinions and title opinions and title policies of insurance relating to any of the real property interests in the
Round Top Project, the Company Owned Properties and the Company Leased Real Properties to the extent such policies or opinions are
in the Company’s possession.
(k)
The Target Companies have the right to use all information and data pertaining to the Company Mining Rights in their possession.
Section 4.27
Investment Company Act. No Target Company is 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.
Section 4.28
Finders and Brokers. Except as reflected on Section 4.28 of the Company Disclosure Letter, no broker, finder,
investment banker or other Person is entitled to, nor will be entitled to, either directly or indirectly, any brokerage fee, finders’
fee or other similar commission, for which any Target Company would be liable in connection with the Transactions based upon arrangements
made by any Target Company or any of their Affiliates.
Section 4.29 Independent Investigation.
The Target Companies have conducted their own independent investigation, review and analysis of the business, results of operations,
prospects, condition (financial or otherwise) or assets of the Purchaser and Merger Sub, and acknowledge that they have been provided
adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Purchaser and
Merger Sub 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 and Merger Sub set forth in Agreement (including the related portions of the Purchaser Disclosure Letter)
and in any certificate delivered to the Company pursuant hereto; and (b) none of the Purchaser, Merger Sub or any of their respective
Representatives have made any representation or warranty as to the Purchaser or Merger Sub or this Agreement, except as expressly set
forth in this Agreement (including the related portions of the Purchaser Disclosure Letter) or in any certificate delivered to the Company
pursuant hereto.
Section 4.30
Information Supplied. None of the information supplied or to be supplied by, or on behalf of, the Target Companies expressly
for inclusion or incorporation by reference in (i) 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 or in the Proxy Statement/Registration
Statement or (ii) any of the Signing Press Release, the Signing Filing, the Closing Press Release, the Closing Filing and any other press
releases of prospectus filed under Rule 425 of the Securities Act in connection to the Transactions contains 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 at (a) the time such information is filed with or furnished to the
SEC (provided, that if such information is revised by any subsequently filed amendment or supplement, this clause (a) shall solely refer
to the time of such subsequent revision); (b) the time the Proxy Statement/Registration Statement is declared effective by the SEC;
(c) the time the Proxy Statement/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to the Purchaser
Shareholders; or (d) the time of the Purchaser Shareholders’ Meeting. Notwithstanding the foregoing, the Target Companies make
no representation, warranty or covenant with respect to any information supplied by or on behalf of the Purchaser, Merger Sub or their
respective Affiliates.
Section 4.31
No Additional Representations or Warranties. Except as provided in this Article IV, none of the Target Companies
nor any of their respective Affiliates, nor any of their respective directors, managers, officers, employees, equityholders, partners,
members or representatives has made, or is making, any representation or warranty whatsoever to Purchaser, Merger Sub or their
respective Affiliates or any other Person and no such party shall be liable in respect of the accuracy or completeness of any information
provided to the Purchaser, Merger Sub or their respective Affiliates or any other Person.
Article
V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND MERGER SUB
Except as set forth in (i)
in any Purchaser SEC Reports filed or submitted on or prior to the date hereof, or (ii) in the disclosure letter delivered by the Purchaser
to the Company (the “Purchaser Disclosure Letter”) on the date of this Agreement, the Purchaser and Merger Sub represent
and warrant to the Company, as of the date hereof and as of the Closing, as follows:
Section 5.01
Organization and Standing.
(a) The Purchaser is an
exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands. The Purchaser 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.
(b)
Merger Sub is a limited liability company duly formed, validly existing and in good standing under the Laws of Delaware. Merger
Sub has heretofore made available to the Company accurate and complete copies of its Organizational Documents as currently in effect.
Merger Sub is not in violation of any provision of its Organizational Documents in any material respect.
Section 5.02
Authorization; Binding Agreement. Each of the Purchaser and Merger Sub has all requisite power and authority to execute
and deliver this Agreement and each Ancillary Document to which it is a party, to perform its respective obligations hereunder and thereunder
and to consummate the Transactions, subject to obtaining the Purchaser Shareholder Approval. The execution and delivery of this Agreement
and each Ancillary Document to which it is a party and the consummation of the Transactions (a) have been duly and validly authorized
by the boards of directors (or equivalent governing body) of the Purchaser and Merger Sub, and (b) other than the Purchaser Shareholder
Approval, no other corporate proceedings on the part of the Purchaser or Merger Sub 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. This Agreement has been, and each
Ancillary Document to which the Purchaser or Merger Sub are a party shall be when delivered, duly and validly executed and delivered by
the Purchaser or Merger Sub, as applicable, 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 or Merger Sub, as applicable, enforceable against the Purchaser or Merger Sub, as applicable, 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”).
Section 5.03
Governmental Approvals. Assuming the truth and completeness of the representations and warranties of the Company contained
in this Agreement, 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 or Merger Sub of this Agreement and each Ancillary
Document to which it is a party or the consummation by the Purchaser or Merger Sub of the Transactions, 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,
(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 Purchaser Material Adverse Effect.
Section 5.04 Non-Contravention.
Assuming the truth and completeness of the representations and warranties of the Company contained in this Agreement, the execution
and delivery by each of 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, do not and will not (a) conflict with or violate any provision of
their respective Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section
5.02 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 or Merger Sub 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 Purchaser or Merger Sub 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 or Merger Sub 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 material Contract, except for any deviations from any of the foregoing clauses (b) or (c) that would not
reasonably be expected to have a Purchaser Material Adverse Effect.
Section 5.05
Capitalization.
(a)
As of the date of this Agreement, the authorized share capital of Purchaser is $55,500 divided into (i) 500,000,000 shares of Purchaser
Class A Ordinary Shares, 25,000,000 of which are issued and outstanding, (ii) 50,000,000 shares of Purchaser Class B Ordinary Shares,
of which 6,250,000 shares are issued and outstanding, and (iii) 5,000,000 preference shares, par value $0.0001 per share, of which no
shares are issued and outstanding. All outstanding Purchaser Ordinary Shares 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 Cayman Companies Act, Purchaser’s Organizational Documents or any Contract to which
the Purchaser is a party. None of the outstanding Purchaser Ordinary Shares have been issued in violation of any applicable securities
Laws.
(b)
Subject to the terms of conditions of the Warrant Agreement, in connection with the Domestication, the Cayman Purchaser Warrants
will be converted into Domesticated Purchaser Warrants, which will be exercisable after giving effect to the Transactions for one share
of Domesticated Purchaser Common Stock at an exercise price of $11.50 per share. As of the date of this Agreement, 20,150,000 Cayman Purchaser
Warrants, consisting of 12,500,000 Cayman Purchaser Public Warrants and 7,650,000 Cayman Purchaser Private Placement Warrants are issued
and outstanding. All outstanding Cayman Purchaser Warrants 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 Cayman Companies Act, Purchaser’s Organizational Documents or any Contract to which the Purchaser
is a party. None of the outstanding Cayman Purchaser Warrants have been issued in violation of any applicable securities Laws.
(c)
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 Section 5.05(c) of the Purchaser Disclosure Letter, there are no shareholders
agreements, voting trusts or other agreements or understandings to which the 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 Section 5.05(d) of the Purchaser Disclosure
Letter. No Indebtedness of the Purchaser contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence
of Indebtedness by the Purchaser or (iii) the ability of the Purchaser to grant any Lien on its properties or assets.
(e)
Since the date of formation of the Purchaser, and except as contemplated by this Agreement, the 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 the Purchaser’s board of directors has not authorized any of the foregoing.
(f) Purchaser owns all of
the membership interests in Merger Sub. No other membership interests or other voting securities of Merger Sub are issued, reserved
for issuance or outstanding. All issued and outstanding membership interests of Merger Sub are duly authorized, validly issued,
fully paid and nonassessable and are not subject to, and were not issued in violation of, any purchase option, right of first
refusal, preemptive right, subscription right or any similar right under any provision of the DLLCA, Merger Sub’s
Organizational Documents or any contract to which Merger Sub is a party or by which Merger Sub is bound. There are no outstanding
contractual obligations of Merger Sub to repurchase, redeem or otherwise acquire any of its membership interests or any equity
capital of Merger Sub. There are no outstanding contractual obligations of Merger Sub to provide funds to, or make any investment
(in the form of a loan, capital contribution or otherwise) in, any other Person.
Section 5.06
SEC Filings and Purchaser Financials.
(a)
The Purchaser has, since the IPO, filed all forms, reports, schedules, statements 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 (all of the foregoing filed prior to the date of this Agreement, the “Purchaser SEC Reports”) and will have
filed all such forms, reports, schedules, statements and other documents (except for the Proxy Statement/Registration Statement and any
other forms reports, schedules, statements and other documents filed or furnished with respect to the Transactions) required to be filed
on or subsequent to the date of this Agreement through the Closing Date (the “Additional Purchaser SEC Reports”). All
of the Purchaser SEC Reports, Additional Purchaser SEC Reports, any correspondence from or to the SEC or the Nasdaq Stock Market (“Nasdaq”)
(other than such correspondence in connection with the IPO of the Purchaser) and all certifications and statements required by: (i) Rule
13a-14 or 15d-14 under the Exchange Act; or (ii) 18 U.S.C. § 1350 (Section 906) of the Sarbanes-Oxley Act with respect to any of
the foregoing (collectively, the “Public Certifications”) are available on the SEC’s Electronic Data-Gathering,
Analysis and Retrieval system (EDGAR) in full without redaction.
(b)
The Purchaser SEC Reports were, and the Additional Purchaser SEC Reports will be, prepared in accordance with the requirements
of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations thereunder. The
Purchaser SEC Reports did not, and the Additional Purchaser SEC Reports will not, at the time they were or are filed (or if amended or
superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), as the case may be,
with the SEC 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 light of the circumstances under which they were made, not misleading. Each director
and executive officer of Purchaser has filed with the SEC on a timely basis all statements required with respect to Purchaser by Section
16(a) of the Exchange Act and the rules and regulations thereunder. The Public Certifications are, or will be, each true and correct as
of their respective dates of filing. As used in this Section 5.06(b), the term “file” shall be broadly construed to
include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC or Nasdaq.
(c) The financial
statements and notes contained or incorporated by reference in the Purchaser SEC Reports fairly present, and the financial
statements and notes to be contained in or to be incorporated by reference in the Additional Purchaser SEC Reports will fairly
present, the financial condition and the results of operations, changes in shareholders’ equity and cash flows of the
Purchaser as at the respective dates of, and for the periods referred to, in such financial statements, all in accordance with: (i)
GAAP; and (ii) Regulation S-X or Regulation S-K, as applicable, subject, in the case of interim financial statements, to normal
recurring year-end adjustments and the omission of notes to the extent permitted by Regulation S-X or Regulation S-K, as
applicable.
(d)
The Purchaser has no off-balance sheet arrangements that are not disclosed in the Purchaser SEC Reports. No financial statements
other than those of the Purchaser and Merger Sub are required by GAAP to be included in the consolidated financial statements of the Purchaser.
(e)
The issued and outstanding Cayman Purchaser Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for
trading on Nasdaq under the symbol “IPXXU.” The issued and outstanding Purchaser Class A Ordinary Shares are registered pursuant
to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “IPXX.” The issued and outstanding
Cayman Purchaser Public Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under
the symbol “IPXXW.” The Purchaser is a listed company in good standing with Nasdaq. There is no action or proceeding pending
or, to the Knowledge of the Purchaser, threatened in writing against the Purchaser by Nasdaq or the SEC with respect to any intention
by such entity to deregister the Cayman Purchaser Units, the Purchaser Class A Ordinary Shares or the Cayman Purchaser Public Warrants
or terminate the listing of the Purchaser on Nasdaq. Except in connection with the Transactions, none of the Purchaser or any of its Affiliates
has taken any action in an attempt to terminate the registration of the Cayman Purchaser Units, the Purchaser Class A Ordinary Shares
or Cayman Purchaser Public Warrants under the Exchange Act.
(f)
Except as not required in reliance on exemptions from various reporting requirements by virtue of the Purchaser’s status
as an “emerging growth company” within the meaning of the Securities Act, as modified by the Jumpstart Our Business Startups
Act of 2012 (“JOBS Act”), the Purchaser has established and maintains disclosure controls and procedures (as defined
in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating
to the Purchaser is made known to the Purchaser’s principal executive officer and its principal financial officer by others within
the entity, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared. Such disclosure
controls and procedures are effective in timely alerting the Purchaser’s principal executive officer and principal financial officer
to material information required to be included in the Purchaser’s periodic reports required under the Exchange Act. Since the consummation
of the IPO, the Purchaser has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15
under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of the Purchaser’s financial reporting
and the preparation of the financial statements included in the Purchaser SEC Reports for external purposes in accordance with GAAP.
Section 5.07
Absence of Certain Changes. As of the date of this Agreement, the Purchaser has, since the date of its formation (a)
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 Target Companies
and the negotiation and execution of this Agreement) and related activities and (b) not been subject to a Purchaser Material Adverse Effect.
Merger Sub was formed solely for the purpose of effecting the Transactions and has not engaged in any business activities or conducted
any operations other than in connection with the Transactions.
Section 5.08 Undisclosed
Liabilities. Except for any fees and expenses payable by Purchaser as a result of or in connection with the consummation of
the Transactions, there is no liability, debt or obligation of or claim or judgment against Purchaser (whether direct or indirect,
absolute or contingent, accrued or unaccrued, known or unknown, liquidated or unliquidated, or due or to become due), except for
liabilities and obligations (a) reflected or reserved for on the financial statements or disclosed in the notes thereto included in
the Purchaser SEC Reports, (b) that have arisen since the date of the most recent balance sheet included in the Purchaser SEC
Reports in the ordinary course of business of Purchaser, (c) incurred in connection with the Transactions or (d) which would not be,
or would not reasonably be expected to be, material to Purchaser. Merger Sub has no, and at all times prior to the Effective Time
except as contemplated by this Agreement or the ancillary agreements to this Agreement, will have no, assets, liabilities or
obligations of any kind or nature whatsoever other than those incident to its formation.
Section 5.09
Compliance with Laws. Each of the Purchaser and Merger Sub is, and has since its formation been, in compliance with
all Laws applicable to it and the conduct of its business except for such noncompliance which would not reasonably be expected to be material
to the Purchaser or Merger Sub, and neither the Purchaser nor Merger Sub has received written notice alleging any violation of applicable
Law in any material respect by the Purchaser or Merger Sub.
Section 5.10
Legal Proceedings; Orders; Permits. There is no pending or, to the Knowledge of the Purchaser, threatened Legal Proceeding
to which the Purchaser or Merger Sub is subject which would reasonably be expected to have a Purchaser Material Adverse Effect or that
would have a material adverse effect on the ability of the Purchaser to enter into and perform its obligations under this Agreement and
consummate the Transactions. There is no material Legal Proceeding that the Purchaser or Merger Sub has pending against any other Person.
Neither the Purchaser, nor Merger Sub, is subject to any material Orders of any Governmental Authority, nor are any such Orders pending.
Each of the Purchaser and Merger Sub 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 Purchaser Material Adverse Effect.
Section 5.11
Taxes and Returns.
(a)
The Purchaser (i) has timely filed, or caused to be timely filed, all income and other material Tax Returns required to be filed
by it (taking into account all valid extensions of time to file), and all such Tax Returns are true, accurate, correct and complete in
all material respects, and (ii) has timely paid, collected, withheld or remitted, or caused to be timely paid, collected, withheld or
remitted, all income and other material Taxes required to be paid, collected, withheld or remitted by it, whether or not such Taxes are
shown as due and payable on any Tax Return. The Purchaser has complied in all material respects with all applicable Laws relating to Tax.
(b)
There is no Legal Proceeding currently pending or, to the Knowledge of the Purchaser, threatened against the Purchaser by a Governmental
Authority in a jurisdiction where Purchaser does not file any Tax Returns or a particular type of Tax Return or pays any Tax or a particular
type of Tax that it is or may be subject to such Tax or required to file such Tax Return in that jurisdiction.
(c)
There is no claim, assessment, audit, examination, investigation or other Legal Proceeding that is pending, or to the Knowledge
of the Purchaser, threatened against the Purchaser in respect of any Tax, and the Purchaser has not been notified in writing of any proposed
Tax claim, deficiency or assessment against the Purchaser. Purchaser is not currently contesting any material Tax liability before any
Governmental Authority.
(d)
There are no Liens with respect to any Taxes upon any of the Purchaser’s assets, other than Permitted Liens.
(e)
The Purchaser has timely and properly collected or withheld all Taxes required to be collected or withheld by it, timely remitted
such Taxes to the appropriate Governmental Authorities, and otherwise complied in all material respects with all applicable withholding
and related reporting requirements with respect to such Taxes.
(f) The Purchaser has not
requested or consented to any waivers or extensions of any applicable statute of limitations for the collection or assessment of any
Taxes, which waiver or extension (or request thereof) is outstanding or pending.
(g)
The Purchaser 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) beginning after the Closing Date, as a result of: (i) an installment sale or open transaction
disposition that occurred on or prior to the Closing Date; (ii) any change in method of accounting on or prior to the Closing Date, including
by reason of the application of Section 481 of the Code (or any analogous provision of state, local or foreign Law) or the use of an improper
method of accounting on or prior to the Closing Date; (iii) any prepaid amounts received or deferred revenue realized or received on or
prior to the Closing Date; (iv) any intercompany transaction described in Treasury Regulations under Section 1502 of the Code (or any
corresponding or similar provision of state, local or foreign Law); or (v) any “closing agreement” pursuant to Section 7121
of the Code or any other agreement or arrangement with a Governmental Authority relating to Taxes.
(h)
The Purchaser has not participated in or been a party to, or sold, distributed or otherwise promoted, any “reportable transaction,”
as defined in Treasury Regulations Section 1.6011-4 (or any similar or corresponding provision of state, local or foreign Law).
(i) The Purchaser has not
been a member of an affiliated, combined, consolidated, unitary or other group for Tax purposes. The Purchaser does not have any
Liability or potential Liability for the Taxes of another Person (i) pursuant to Treasury Regulations Section 1.1502-6 (or any
similar or corresponding provision of U.S. state or local Tax Law) or under any other applicable Tax Law, (ii) as a transferee or
successor, or (iii) by Contract, indemnity or otherwise (excluding customary commercial Contracts entered into in the ordinary
course of business the primary purpose of which is not the sharing of Taxes). The Purchaser is not a party to or bound by any Tax
indemnity agreement, Tax sharing agreement or Tax allocation agreements or similar agreement, arrangement or practice (excluding
customary commercial Contracts entered into in the ordinary course of business the primary purpose of which is not the sharing of
Taxes) with respect to Taxes.
(j) The Purchaser has not
requested, and is not the subject of or bound by, any private letter ruling, technical advice memorandum, closing agreement or
similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes, nor is any such request pending
or outstanding.
(k)
The Purchaser has not knowingly taken any action, nor is it aware of any fact or circumstance, that would reasonably be expected
to prevent the relevant portions of the Transactions from qualifying for their respective Intended Tax Treatments.
Section 5.12
Properties. Neither the Purchaser, nor Merger Sub, owns, licenses or otherwise has any right, title or interest in any
material Intellectual Property. Neither the Purchaser, nor Merger Sub own or lease any material real property or material Personal Property
(except for the Purchaser’s ownership of the Merger Sub membership interests).
Section 5.13
Investment Company Act. To the Knowledge of Purchaser, 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.
Section 5.14 Trust
Account. As of the date of this Agreement, Purchaser has at least $250,000,000 in the Trust Account, such monies held in
cash or invested in United States government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated
under the Investment Company Act pursuant to the Investment Management Trust Agreement (the “Trust Agreement”),
dated as of May 24, 2023, between Purchaser and Continental, as trustee (the “Trustee”). There are no separate
Contracts, side letters or other arrangements or understandings (whether written or unwritten, express or implied) that would cause
the description of the Trust Agreement in the Purchaser SEC Reports to be inaccurate or that would entitle any Person (other than
Purchaser Shareholders who shall have properly elected to redeem their Purchaser Class A Ordinary Shares pursuant to
Purchaser’s Organizational Documents and the underwriters of the IPO with respect to deferred underwriting commissions) to any
portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released
other than to pay Taxes and payments with respect to the Redemption of Purchaser Class A Ordinary Shares properly submitted in
connection with a shareholder vote to amend the Purchaser’s Organizational Documents to (A) modify the substance or timing of
its obligation to allow redemption in connection with its initial business combination or to redeem 100% of its Purchaser Class A
Ordinary Shares if it has not consummated an initial business combination within the prescribed window or (B) with respect to any
other material provisions related to shareholders’ rights or pre-initial business combination activity. The Trust Agreement
has not been amended or modified and is a valid and binding obligation of Purchaser and is in full force and effect and is
enforceable in accordance with its terms, subject to the Enforceability Exceptions. There are no claims or proceedings pending or,
to the Knowledge of Purchaser, threatened with respect to the Trust Account. Purchaser has performed all material obligations
required to be performed by it to date under, and is not in default, breach or delinquent in performance or any other respect
(claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or
both, would constitute such a default or breach thereunder. As of the Closing, the obligations of Purchaser to dissolve or liquidate
pursuant to Purchaser’s Organizational Documents shall terminate, and as of the Closing, Purchaser shall have no obligation
whatsoever pursuant to Purchaser’s Organizational Documents to dissolve and liquidate the assets of Purchaser by reason of the
consummation of the Transactions. To the Knowledge of Purchaser, as of the date hereof, following the Closing, no Purchaser
Shareholder shall be entitled to receive any amount from the Trust Account except to the extent such Purchaser Shareholder is
exercising their option to redeem Domesticated Purchaser Common Stock in connection with the Redemption. As of the date hereof,
assuming the accuracy of the representations and warranties of the Company contained herein and the compliance by the Company with
its obligations hereunder, Purchaser does not have any reason to believe that any of the conditions to the use of funds in the Trust
Account will not be satisfied or funds available in the Trust Account will not be available to Purchaser on the Closing Date.
Section 5.15
Finders and Brokers. Except as reflected on Section 5.15 of the Purchaser Disclosure Letter, no broker, finder,
investment banker or other Person is entitled to, nor will be entitled to, either directly or indirectly, any brokerage fee, finders’
fee or other similar commission, including any deferred underwriting commissions, for which the Purchaser or Merger Sub would be liable
in connection with the Transactions based upon arrangements made by the Purchaser or any of their Affiliates.
Section 5.16
Certain Business Practices.
(a) To the Knowledge of
the Purchaser, none of the Purchaser, Merger Sub or any of their Representatives acting on behalf of the Purchaser or Merger Sub,
has offered, given, paid, promised to give or pay, or authorized the giving or payment of anything of value to (i) an official or
employee of a foreign or domestic Governmental Authority; (ii) a foreign or domestic political party or an official of a foreign or
domestic political party; (iii) a candidate for foreign or domestic political office; or (iv) any Person, in any such case under
circumstances the Purchaser, Merger Sub or the Representative thereof knew, or reasonably would have known after due and proper
inquiry, that all or a portion of such thing of value would be offered, given, paid, or promised to an official of employee of a
foreign or domestic Governmental Authority, a foreign or domestic political party, an official of a foreign or domestic political
party, or a candidate for foreign or domestic political office, in each case in violation of any Anti-Bribery Laws. To the Knowledge
of the Purchaser, none of the Purchaser, Merger Sub or any Representative thereof has conducted or initiated any internal
investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority with respect to any alleged act
or omission relating to any noncompliance with any Anti-Bribery Laws. To the Knowledge of the Purchaser, none of the Purchaser,
Merger Sub or any Representative thereof has received any written notice, request, or citation from any Governmental Authority for
any actual or potential noncompliance with any Anti-Bribery Laws. The Purchaser has instituted and maintains policies and procedures
reasonably designed to ensure compliance in all material respects with the Anti-Bribery Laws.
(b)
The operations of the Purchaser and Merger Sub are and have been conducted at all times in material compliance with Sanctions Laws,
International Trade Laws, and 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 Legal Proceeding
involving the Purchaser or Merger Sub with respect to any of the foregoing is pending or, to the Knowledge of the Purchaser, threatened.
(c)
None of the Purchaser, Merger Sub, or any of their respective directors or officers nor, to the Knowledge of the Purchaser, any
other Representative acting on behalf of the Purchaser or Merger Sub is or has been: (i) identified on any applicable sanctions-related
list of designated or blocked persons (including without limitation the SDN List maintained by OFAC), (ii) otherwise the subject or target
of any U.S. sanctions administered by OFAC, (iii) located, organized or resident in any Sanctioned Jurisdiction, or (iv) owned, directly
or indirectly, individually or in the aggregate, 50% or more or otherwise controlled by any of the foregoing.
(d)
The Purchaser and Merger Sub have maintained in place and implemented controls and systems designed to ensure compliance with
economic sanctions administered and maintained by the U.S. government.
(e)
Neither the Purchaser nor Merger Sub has 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 a Sanctioned Jurisdiction
or for the purpose of financing the activities (x) of any Person currently the subject or target of U.S. sanctions administered by the
U.S. government, or (y) in any other manner that would constitute a violation of, any U.S. sanctions administered by U.S. government.
Section 5.17
Insurance. Section 5.17 of the Purchaser Disclosure Letter lists all insurance policies (by policy number, insurer,
coverage period, coverage amount, annual premium and type of policy) held by the Purchaser or Merger Sub or relating to the Purchaser
or Merger Sub or their 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 and Merger Sub are 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 or Merger Sub. Each of the Purchaser and Merger Sub 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 have a Purchaser Material Adverse Effect.
Section 5.18 Information
Supplied. None of the information supplied or to be supplied by, or on behalf of, Purchaser or Merger Sub expressly for
inclusion or incorporation by reference in (i) 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 or in the Proxy
Statement/Registration Statement or (ii) any of the Signing Press Release, the Signing Filing, the Closing Press Release, the
Closing Filing and any other press releases or prospectuses filed under Rule 425 of the Securities Act in connection to the
Transactions shall 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 at (a)
the time such information is filed with or furnished to the SEC (provided, that if such information is revised by any subsequently
filed amendment or supplement, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the
Proxy Statement/Registration Statement is declared effective by the SEC; (c) the time the Proxy Statement/Registration
Statement (or any amendment thereof or supplement thereto) is first mailed to the Purchaser Shareholders; or (d) the time of
the Purchaser Shareholders’ Meeting. Notwithstanding the foregoing, the Purchaser and Merger Sub make no representations,
warranties or covenants with respect to any information supplied by or on behalf of the Target Companies or their respective
Affiliates.
Section 5.19
Independent Investigation. The Purchaser and Merger Sub have conducted their own independent investigation, review and
analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Target Companies, and
acknowledges that they have been provided adequate access to the personnel, properties, assets, premises, books and records, and other
documents and data of the Target Companies for such purpose. The Purchaser and Merger Sub acknowledge and agree that: (a) in making their
decision to enter into this Agreement and to consummate the Transactions, they have relied solely upon their own investigation and the
express representations and warranties of the Company set forth in this Agreement (including the related portions of the Company Disclosure
Letter) and in any certificate delivered to Purchaser or Merger Sub pursuant hereto, and the information provided by or on behalf of the
Target Companies for the Proxy Statement/Registration Statement; and (b) neither the Company, nor its Representatives have made any representation
or warranty as to Target Companies, or this Agreement, except as expressly set forth in Article IV (including the related portions
of the Company Disclosure Letter) or in any certificate delivered to Purchaser or Merger Sub pursuant hereto. Without limiting the foregoing,
the Purchaser and Merger Sub acknowledge that the Purchaser and Merger Sub or their advisors, have made their own investigation of the
Target Companies and, except as provided in Article IV, are not relying on any representation or warranty whatsoever as to the
condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Target Companies,
the prospects (financial or otherwise) or the viability or likelihood of success of the business of the Target Companies as conducted
after the Closing, or as contained in any materials provided by the Target Companies or any of their respective Affiliates or any of their
respective directors, officers, employees, shareholders, partners, members or representatives or otherwise.
Section 5.20
No Additional Representation or Warranties. Except as provided in this Article V, none of the Purchaser, Merger
Sub, any their respective Affiliates, or any of their respective directors, managers, officers, employees, stockholders, partners, members
or representatives has made, or is making, any representation or warranty whatsoever to the Target Companies or their Affiliates and no
such party shall be liable in respect of the accuracy or completeness of any information provided to the Target Companies or their Affiliates.
Without limiting the foregoing, the Company acknowledges that the Target Companies or their advisors, have made their own investigation
of the Purchaser and Merger Sub and, except as provided in this Article V, are not relying on any representation or warranty whatsoever
as to the condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Purchaser
and Merger Sub, the prospects (financial or otherwise) or the viability or likelihood of success of the business of the Purchaser and
Merger Sub as conducted after the Closing, or as contained in any materials provided by the Purchaser or Merger Sub or any of their respective
Affiliates or any of their respective directors, officers, employees, shareholders, partners, members or representatives or otherwise.
Article
VI
COVENANTS
Section 6.01
Access and Information; Cooperation.
(b)
During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance
with Section 8.01 or the Closing (the “Interim Period”), subject to Section 6.16, the Company shall give,
and shall cause the Target Companies and its and their respective 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 officers, managers, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information,
of or pertaining to the Target Companies as the Purchaser or its Representatives may reasonably request regarding the Target Companies
and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects
and cause each of the Target Companies’ 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 Target Companies. Notwithstanding the foregoing, the Company
shall not be required to provide, or cause to be provided, to Purchaser or any of its Representatives any information (i) if and to the
extent doing so would (A) violate any Law to which the Company is subject, (B) result in the disclosure of any trade secrets of third
parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of the Company with respect to confidentiality,
non-disclosure or privacy or (D) jeopardize protections afforded to the Company under the attorney-client privilege or the attorney work
product doctrine (provided that, in the case of each of clauses (A) through (C), the Company shall use commercially reasonable efforts
to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed)
without violating such Contract, obligation or Law and (y) provide such information in a manner without violating such Contract, obligation
or Law), or (ii) if the Company, on the one hand, and Purchaser or any of its Representatives, on the other hand, are adverse parties
in a litigation and such information is reasonably pertinent thereto. For the avoidance of doubt, the Company shall not be obligated under
this Section 6.01(a) to permit the Purchaser or any of its Representatives to conduct any invasive, intrusive or subsurface sampling
or testing of any media at the properties of any of the Target Companies.
(c) During the Interim
Period, subject to Section 6.16, 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 officers, directors, properties, Contracts, agreements, commitments, books and records,
financial and operating data and other information, 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 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 shall not be
required to provide, or cause to be provided, to the Company or any of its Representatives any information (i) if and to the extent
doing so would (A) violate any Law to which the Purchaser is subject, (B) violate any legally-binding obligation of the Purchaser
with respect to confidentiality, non-disclosure or privacy or (C) jeopardize protections afforded to the Purchaser under the
attorney-client privilege or the attorney work product doctrine (provided that, in the case of each of clauses (A) through (B), the
Purchaser shall use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such
information regarding the applicable matter as can be conveyed) without violating such Contract, obligation or Law and (y) provide
such information in a manner without violating such Contract, obligation or Law), or (ii) if the Purchaser, on the one hand, and the
Company or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably
pertinent thereto.
(d)
During the Interim Period, each of the Company and the Purchaser shall, and shall cause their respective Representatives to, reasonably
cooperate in a timely manner in connection with any financing arrangement the Parties mutually agree to seek in connection with the transactions
contemplated by this Agreement (including, in connection with the PIPE Investment), including, (i) by providing such information and assistance
as the other Party may reasonably request, (ii) granting such access to the other Party and its Representatives as may be reasonably necessary
for their due diligence, and (iii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due
diligence sessions with respect to such financing efforts (including direct contact between senior management and other Representatives
of the Company at reasonable times and locations). All such cooperation, assistance and access shall be granted during normal business
hours and shall be granted under conditions that shall not unreasonably interfere with the business and operations of the Company, the
Purchaser, or their respective Representatives.
Section 6.02
Conduct of Business of the Company.
(a)
During the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents, as required by applicable
Law (including COVID-19 Measures), as set forth on Section 6.02(b) of the Company Disclosure Letter or as consented to in writing
by the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall use commercially reasonable
efforts to, and shall use commercially reasonable efforts to cause its Subsidiaries to, (i) conduct its and their respective businesses,
in all material respects, in the ordinary course of business, (ii) comply in all material respects with all Laws applicable to the Target
Companies and their respective businesses and assets, and (iii) take commercially reasonable measures necessary or appropriate to preserve
intact, in all material respects, their respective businesses.
(b)
Without limiting the generality of Section 6.02(a) and except as contemplated by the terms of this Agreement or the Ancillary
Documents, as required by applicable Law (including COVID-19 Measures) or as set forth on Section 6.02(b) of the Company Disclosure
Letter, 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, and shall cause its Subsidiaries to not:
(i) amend, waive or
otherwise change, in any respect, its Organizational Documents, except for any updates to Schedule A of the Company OA;
(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 units 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, except in compliance with existing Company Benefits Plans or any Contract (including any warrant, option, or profits
interest award) outstanding as of the date hereof which has been disclosed in writing to the Purchaser or through the virtual
dataroom maintained by SecureDocs with respect to the Company (the “Dataroom”) or prior to the date of this
Agreement;
(iii) split, combine,
recapitalize or reclassify any of its units 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, except as may
be required pursuant to the Company OA or the Organizational Documents of any Target Company in connection with the
Transactions;
(iv)
allow the aggregate Indebtedness of the Target Companies to exceed $5,000,000, excluding amounts that may be owed pursuant to those
items set forth on Section 6.02(b) of the Company Disclosure Letter;
(v)
except as otherwise required by Company Benefit Plans or award agreements thereunder, (A) grant any severance, retention, change
in control or termination or similar pay, (B) terminate, adopt, enter into or materially amend or grant any new awards under any Company
Benefit Plan or any plan, policy, practice, program, agreement or other arrangement that would be deemed a Company Benefit Plan as of
the date hereof, (C) increase the cash compensation or bonus opportunity of any employee, officer, director or other individual service
provider, except for such increases to any such individuals who are not directors or officers of the Target Companies made in the ordinary
course of business consistent with past practice, (D) take any action to amend or waive any performance or vesting criteria or to accelerate
the time of payment or vesting of any compensation or benefit payable by the Company or any of the Company’s Subsidiaries, (E) hire
or engage any new employee or individual independent contractor if such new employee or individual independent contractor will receive
annual base cash compensation in excess of $250,000, other than in the ordinary course of business consistent with past practice, (F)
terminate the employment or engagement, other than for cause, death or disability, of any employee or individual independent contractor
with an annual base cash compensation in excess of $250,000 or (G) enter into any written waiver of any restrictive covenants applying
to any current or former employee or individual independent contractor;
(vi)
enter into or extend any collective bargaining agreement or similar labor agreement, or recognize or certify any labor union, labor
organization, or group of employees of any Target Company as the bargaining representative for any employees of any Target Company;
(vii) (A) make, change
or rescind any material election relating to Taxes, (B) settle any claim, suit, litigation, proceeding, arbitration, investigation,
audit, controversy or other Legal Proceeding relating to material Taxes, (C) file any amended Income Tax or other material Tax
Return, (D) surrender or allow to expire any right to claim a refund of material Taxes, (E) change (or request to change) any method
of accounting for Tax purposes, (F) waive or extend any statute of limitations in respect of a period within which an
assessment or reassessment of Income Taxes or other material Taxes may be issued or in respect of any Income Taxes or other material
Tax attribute that would give rise to any claim or assessment of Taxes of or with respect to the Target Companies, (G) enter into
any “closing agreement” as described in Section 7121 of the Code or any other agreement or arrangement with any
Governmental Authority, (H) enter into any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar
agreement, arrangement or practice (excluding customary commercial Contracts entered into in the ordinary course of business the
primary purpose of which is not the sharing of Taxes) with respect to Taxes, or (I) surrender or knowingly allow to expire any right
to claim a refund of material Taxes;
(viii)
knowingly take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected
to prevent the relevant portions of the Transactions from qualifying for their respective Intended Tax Treatments;
(ix) transfer, sell,
assign, license, sublicense, covenant not to assert, subject to a Lien (other than a Permitted Lien), abandon, allow to lapse,
transfer or otherwise dispose of, any right, title or interest of any Target Company in or to any Owned Intellectual Property
material to any of the businesses of the Target Companies (other than non-exclusive licenses of Owned Intellectual Property granted
in the ordinary course of business or abandoning, allowing to lapse or otherwise disposing of Owned Intellectual Property
registrations or applications that the Target Companies, in the exercise of their good faith business judgment, has determined to
abandon, allow to lapse or otherwise dispose of), or otherwise materially amend or modify, permit to lapse or fail to preserve any
material Company Registered IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary course of
business consistent with past practice), or disclose, divulge, furnish to or make accessible to any Person who has not entered into
a confidentiality agreement sufficiently protecting the confidentiality thereof any material Trade Secrets constituting Owned
Intellectual Property, or include, incorporate or embed in, link to, combine, make available or distribute with, or use in the
development, operation, delivery or provision of any Company Software any Open Source Software in a manner that would subject such
Company Software to Copyleft Terms;
(x)
fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past
practice;
(xi)
terminate or assign any Company Material Contract or any material Company Real Property Lease or enter into any Contract that would
be a Company Material Contract or material Company Real Property Lease, in any case outside of the ordinary course of business consistent
with past practice;
(xii)
enter into any new line of business or establish any Subsidiary in connection therewith;
(xiii)
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, or terminate without replacement or amend in a manner materially detrimental to the Target Companies, taken as
a whole, any material insurance policy insuring any of the Target Companies;
(xiv)
make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP or changes
that are made in accordance with PCAOB standards;
(xv)
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, a Target Company or its Affiliates) not in excess of $500,000 (individually or in the aggregate);
(xvi)
effect any mass layoff or plant closing at any of its facilities that triggers the notice obligations under the Worker Adjustment
and Retraining Notification Act of 1988, except as would not be material to the Target Companies or any terminations for cause;
(xvii) 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, in each case, outside the ordinary course of business consistent with past practice, except pursuant to any Contract in
existence as of the date hereof which has been disclosed in writing or in the Dataroom to the Purchaser;
(xviii) make capital
expenditures outside of the ordinary course of business consistent with past practice (for the avoidance of doubt, expenditures with
respect to completion of the Company’s Stillwater magnet project are in the ordinary course of business) in excess of $500,000
(individually for any project) or $2,500,000 in the aggregate in each case excluding the incurrence of any ordinary course
administrative costs and expenses and other expenses incurred in connection with the consummation of Transactions (including legal
or accounting);
(xix)
adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or other reorganization;
(xx)
voluntarily incur Liabilities or obligations (whether absolute, accrued, contingent or otherwise) in excess of $2,500,000 in the
aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan, in any case, outside of the ordinary
course of business, taking into account the anticipated growth in the Target Companies’ businesses over the twelve months beginning
on the date of this Agreement, and excluding the expenses incurred in connection with the consummation of Transactions (including legal
or accounting);
(xxi)
sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise
dispose of any material portion of its tangible properties, assets or rights other than land swaps in furtherance of the Round Top Project;
(xxii)
enter into any written agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxiii)
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;
(xxiv)
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, in the ordinary course of business consistent
with past practice or any existing Contract (provided such Contract is not amended after the date of this Agreement) or its Organizational
Documents);
(xxv)
(A) limit the right of any Target Company to engage in any line of business or in any geographic area, to develop, market or sell
products or services, or to compete with any Person or (B) grant any exclusive or similar rights to any Person, in each case, except where
such limitation or grant does not, and would not be reasonably likely to, individually or in the aggregate, materially and adversely affect,
or materially disrupt, the ordinary course operation of the business of the Target Companies; or
(xxvi)
authorize or agree to do any of the foregoing actions.
Section 6.03
Conduct of Business of the Purchaser.
(a)
During the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents, as required by applicable
Law (including COVID-19 Measures), as set forth on Section 6.03(b) of the Purchaser Disclosure Letter or as consented to in writing
by the Company (such consent not to be unreasonably withheld, conditioned or delayed), the Purchaser shall, and shall cause Merger Sub
to, (i) conduct its business, in all material respects, in the ordinary course of business, (ii) comply in all material respects with
all Laws applicable to it and its businesses, assets and employees, and (iii) take commercially reasonable measures necessary or appropriate
to preserve intact, in all material respects, its business organizations. Notwithstanding anything to the contrary in this Section
6.03, nothing in this Agreement shall prohibit or restrict the Purchaser from extending, in accordance with the 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 6.03(a)(a) and except as contemplated by the terms of this Agreement or
the Ancillary Documents (including the Domestication or as contemplated by the PIPE Investment), as required by applicable Law
(including COVID-19 Measures) or as set forth on Section 6.03(b) of the Purchaser Disclosure Letter, 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 Merger Sub not to:
(i) amend, waive or otherwise
change, in any respect, its Organizational Documents;
(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 6.03(b)(a)(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 Transactions (including the PIPE Investment and the costs and expenses necessary for an Extension, up to aggregate
additional Indebtedness during the Interim Period of $2,500,000));
(v)
(A) make, change or rescind any material election relating to Taxes, (B) settle any claim, suit, litigation, proceeding, arbitration,
investigation, audit, controversy or other Legal Proceeding relating to material Taxes, (C) file any amended Income Tax or other material
Tax Return, (D) surrender or allow to expire any right to claim a refund of material Taxes, (E) change (or request to change) any method
of accounting for Tax purposes, (F) waive or extend any statute of limitations in respect of a period within which an assessment
or reassessment of Income Taxes or other material Taxes may be issued or in respect of any Income Taxes or other material Tax attribute
that would give rise to any claim or assessment of Taxes of or with respect to Purchaser, (G) enter into any “closing agreement”
as described in Section 7121 of the Code or any other agreement or arrangement with any Governmental Authority, (H) enter into any
Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement, arrangement or practice (excluding customary
commercial Contracts entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes) with respect
to Taxes, or (I) surrender or allow to expire any right to claim a refund of material Taxes;
(vi) knowingly take any
action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the
relevant portions of the Transactions from qualifying for their respective Intended Tax Treatments;
(vii) amend, waive or
otherwise change the Trust Agreement in any manner adverse to the Purchaser;
(viii)
terminate, waive or assign any material right under any material Contract of Purchaser;
(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) make any material
change in accounting methods, principles or practices, except to the extent required to comply with GAAP or PCAOB standards;
(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), 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 $500,000 (individually or in the aggregate);
(xiv)
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;
(xv) 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 ordinary course administrative costs and expenses and expenses incurred in connection with
the consummation of Transactions, including legal or accounting (including the PIPE Investment and the costs and expenses necessary
for an Extension));
(xvi) adopt a plan of
complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other
than with respect to the Transactions);
(xvii) voluntarily incur
any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $500,000 individually or $1,000,000 in
the aggregate (excluding the incurrence of any ordinary course administrative costs and expenses and expenses incurred in connection
with the consummation of Transactions, including legal or accounting (including the PIPE Investment and the costs and expenses
necessary for an Extension)) 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 6.03 during the Interim Period;
(xviii) sell, lease,
license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of
any material portion of its tangible properties, assets or rights;
(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;
(xx) grant or establish
any form of compensation or benefits to any current or former employee, officer, director, individual independent contractor or
other individual service provider of Purchaser; or
(xxi)
authorize or agree to do any of the foregoing actions.
Section 6.04
Annual and Interim Financial Statements.
(a)
To the extent not already delivered, as soon as reasonably practicable following the date of this Agreement, but in no event later
than October 31, 2024, the Company shall deliver to the Purchaser audited consolidated balance sheets and statements of operations, comprehensive
loss, stockholders’ equity and cash flows of the Target Companies as of and for the years ended December 31, 2023, together with
the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements and with the rules
and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant and which are have been audited in accordance
with GAAP and PCAOB standards (collectively, the “PCAOB Financial Statements”); provided, that upon delivery of such
PCAOB Financial Statements, such financial statements shall be deemed “Audited Financial Statements” for the purposes of this
Agreement and the representation and warranties set forth in Section 4.06 shall be deemed to apply to such Audited Financial Statements
with the same force and effect as if made as of the date of this Agreement; provided further that there shall be no material changes between
the Audited Financial Statements and the PCAOB Financial Statements with respect to the particular fixed period.
(b)
To the extent not already delivered, as soon as reasonably practicable following the date of this Agreement, but in no event later
than October 31, 2024, the Company shall deliver to the Purchaser unaudited reviewed consolidated balance sheets and statements of operations,
comprehensive loss, stockholders’ equity and cash flows of the Target Companies as of and for the six-month periods ending June
30, 2024 and 2023, which comply in all material respects with the applicable accounting requirements and with the rules and regulations
of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Updated 1H Financial Statements”)
and as soon as reasonably practicable, the Company shall deliver to the Purchaser any other audited or unaudited financial statements
of the Target Companies that are required by applicable law to be included in the Proxy Statement/Registration Statement; provided, that
upon delivery of such Updated 1H Financial Statements and any other audited or unaudited financial statements of the Target Companies,
the representation and warranties set forth in Section 4.06 shall be deemed to apply to the Updated 1H Financial Statements and
any other audited or unaudited financial statements of the Target Companies, mutatis mutandis, with the same force and effect as if made
as of the date of this Agreement.
(c)
Notwithstanding anything else in this Agreement, failure to provide the PCAOB Financial Statements and the Updated 1H Financial
Statements by the deadlines specified in Section 6.04 shall not be a breach of this Agreement.
Section 6.05
Purchaser Public Filings. During the Interim Period, the Purchaser will keep current all of its public filings with
the SEC (after giving effect to all applicable extension periods) 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 Class A Ordinary
Shares and the Cayman Purchaser Public Warrants on Nasdaq; provided, that the Parties acknowledge and agree that (i) if Purchaser
fails to timely file any public filing with the SEC, such failure shall not be a breach of this Section 6.05 provided such public
filing is made before the effectiveness of the Registration Statement or the earlier termination of this Agreement pursuant to Section
8.01(e) (even though such filing is late) and such late filing does not have a material adverse impact on the consummation of the
Transactions and (ii) from and after the Closing, the Parties intend to list on Nasdaq only the Domesticated Purchaser Common Stock and
the Domesticated Purchaser Warrants.
Section 6.06
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 (whether written or oral), from any Person or group at any time relating to an Alternative Transaction
(other than the Purchaser and the Sponsor or their respective Representatives), and (ii) an “Alternative
Transaction” means (A) with respect to the Company and its Subsidiaries, a transaction or a series of transactions (other
than the Transactions) concerning the sale (whether directly or indirectly) of (x) all or any part of the business or assets of the
Target Companies, (y) any of the units or other equity interests or profits of any of the Target Companies, in any case, whether
such transaction takes the form of a sale of units or other equity interests, assets, merger, consolidation, issuance of debt
securities, management Contract, joint venture or partnership, or otherwise or (z) a merger, consolidation, share exchange, business
combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the sale or
disposition of any of the Target Companies 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 or any of its Affiliates.
(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, engage or facilitate the
making, submission or announcement of, or 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, (vi) release any third Person from, or waive any provision of, any confidentiality
agreement to which such Party is a party, (vii) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions,
or negotiations or any effort or attempt by any Person to make an Alternative Transaction or (viii) agree or otherwise commit to enter
into or engage in any of the foregoing.
(c)
Each Party shall notify the other Parties as promptly as practicable (and in any event within two (2) Business Days) in writing
of the receipt by such Party or any of its Representatives of (i) any inquiries, proposals or offers, requests for information or requests
for discussions or negotiations regarding or constituting any Acquisition Proposal or any 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.
Section 6.07 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, it shall cause its Subsidiaries not to, and it shall instruct its
other Affiliates and Representatives not to, purchase or sell any securities of the Purchaser (unless otherwise explicitly
contemplated in this Agreement), communicate such information to any third party (other than (x) to Persons for the purpose of
seeking consents related to the Transactions or (y) Persons subject to confidentiality restrictions in favor of the Company), 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.
Section 6.08
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) 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 or (ii) any non-compliance
with any Law by such Party or its Affiliates; (b) receives any notice or other communication from any Governmental Authority in connection
with the Transactions; or (c) becomes aware of the commencement or threat, in writing, of any Legal Proceeding 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, in each case, with respect to the consummation
of the Transactions. 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. In the event that any litigation related to this Agreement, any Ancillary
Documents or the Transactions is brought, or, to the Knowledge of the Parties, respectively, threatened, against such Party, or the board
of directors (or similar governing body) of such Party or its Subsidiaries, respectively, by a third party prior to the Closing, such
Party shall promptly notify the other Party of any such litigation and keep the other Party reasonably informed with respect to the status
thereof. Each Party shall provide the other Party the opportunity to participate in (subject to a customary joint defense agreement),
but not control, the defense of any such litigation, shall give due consideration to the other Party’s advice with respect to such
litigation and shall not settle or agree to settle any such litigation without the prior written consent of the other Party, such consent
not to be unreasonably withheld, conditioned or delayed.
Section 6.09
Efforts.
(a)
Subject to the terms and conditions of this Agreement, each Party shall use its reasonable best 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 (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.
(b) In furtherance and not
in limitation of Section 6.09(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 or lessening of competition through merger or
acquisition (“Antitrust Laws”), each Party hereto agrees to make any required filing or application under
Antitrust Laws, as applicable, at such Party’s sole cost and expense (except that any fees or other amounts charged by any
Governmental Authorities relating to such filings or applications will be split equally between the Purchaser, on the one hand, and
the Company, on the other hand), with respect to the Transactions 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 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; (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 reasonable best efforts to cooperate in the filing of any memoranda, white papers, filings, correspondence or other written
communications explaining or defending the Transactions, 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 reasonable best efforts to prepare and file with Governmental
Authorities any requests for approval, to the extent required, of the Transactions and shall use their reasonable best efforts to have
such Governmental Authorities approve the Transactions. 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, 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, 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 under any applicable Law or if any Legal Proceeding is instituted (or threatened to be instituted) by any applicable Governmental
Authority or any private Person challenging any of the Transactions 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, the Parties shall use their reasonable
best efforts to resolve any such objections or Legal Proceedings so as to timely permit consummation of the Transactions, including in
order to resolve such objections or Legal Proceedings which, in any case if not resolved, could reasonably be expected to prevent, materially
impede or materially delay the consummation of the Transactions. In the event any Legal Proceeding is instituted (or threatened to be
instituted) by a Governmental Authority or private Person challenging the Transactions, 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 Legal Proceeding 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.
(d)
Prior to the Closing, each Party shall use its reasonable best 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 or required as a result of
the execution or performance of, or consummation of the Transactions by such Party or its Affiliates, and the other Parties shall provide
reasonable cooperation in connection with such efforts.
Section 6.10 Trust
Account. Upon satisfaction or waiver of the conditions set forth in Article VII and provision of notice thereof to
the Trustee (which notice Purchaser shall provide to the Trustee in accordance with the terms of the Trust Agreement), (i) in
accordance with and pursuant to the Trust Agreement, Purchaser (a) shall cause any documents, opinions and notices required to
be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (b) shall use its reasonable best efforts to
cause the Trustee to, and the Trustee shall thereupon be obligated to (1) pay as and when due all amounts payable to the
Purchaser Shareholders pursuant to the Redemption, and (2) pay all remaining amounts then available in the Trust Account to
Purchaser for immediate use, subject to this Agreement and the Trust Agreement, and (ii) thereafter, the Trust Account shall
terminate, except as otherwise provided therein.
Section 6.11
Tax Matters.
(a)
The Parties hereby agree and acknowledge that, for U.S. federal, and applicable state and local, income Tax purposes, it is intended
that the relevant portions of the Transactions qualify for their respective Intended Tax Treatments, and that this Agreement constitutes,
and hereby is adopted as, a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a)
for purposes of Sections 354, 361 and 368 of the Code and the Treasury Regulations promulgated thereunder. No Party shall knowingly take
or knowingly cause to be taken, or knowingly fail to take or knowingly cause to be failed to be taken, any action, if such action or failure
to act, as the case may be, would reasonably be expected to prevent or impede the relevant portions of the Transactions from qualifying
for their respective Intended Tax Treatments. The Parties hereby agree to file all Tax Returns on a basis consistent with the Intended
Tax Treatments unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code or
a change in applicable Law. Each Party agrees to use reasonable best efforts to promptly notify all other Parties of any challenge to
the qualification of any relevant portion of the Transactions for its Intended Tax Treatment by any Governmental Authority.
(b)
Notwithstanding anything to the contrary herein, if the SEC requires that a Tax opinion be prepared and submitted in connection
with the Proxy Statement/Registration Statement and any other filings to be made with the SEC in connection with the Transactions, whether
as an exhibit to the Proxy Statement/Registration Statement or otherwise, and if such a Tax opinion is being provided by a Tax counsel,
the Parties hereto shall, and shall cause their Affiliates to, (i) reasonably cooperate in order to facilitate the issuance of any such
Tax opinion and (ii) deliver to such counsel, to the extent requested by such counsel, a duly executed certificate reasonably satisfactory
to such Party and such counsel dated as of the date requested by such counsel, containing such customary representations, warranties and
covenants as shall be reasonably necessary or appropriate to enable such counsel to render any such opinion; provided, that, notwithstanding
anything herein to the contrary, nothing in this Agreement shall require (x) any counsel to the Company or its advisors to provide an
opinion with respect to any Tax matters relating to or affecting Purchaser or the Purchaser Shareholder, including that the relevant portions
of the Transactions qualify for their respective Intended Tax Treatments and (y) any counsel to Purchaser or its advisors to provide an
opinion with respect to any Tax matters relating to or affecting the Company or the holders or beneficial owners of Company Securities,
including that the relevant portions of the Transactions qualify for their respective Intended Tax Treatments; provided, further,
that neither this provision nor any other provision in this Agreement shall require the provision of a Tax opinion by any Party’s
counsel or advisors to be an express condition precedent to the Closing.
(c)
All transfer, documentary, sales, use, stamp, registration, excise, recording, registration, value added and other such similar
Taxes and fees (including any penalties and interest) that become payable in connection with or by reason of the execution of this Agreement
and the Transactions (“Transfer Taxes”) shall be borne and paid by the relevant Target Companies. The Target Companies
shall, at their own expense, timely file all necessary Tax Returns or other documentation with respect to such Transfer Taxes and, if
required by applicable Law, the other Parties shall join in the execution of any such Tax Returns or other documentation.
(d) With respect to any
audit, examination, claim or other Legal Proceeding with respect to Tax matters (“Tax Proceeding”) of the Company
for U.S. federal, or applicable state or local, income tax purposes for any taxable period (or portion thereof) ending on or prior
to the Closing Date and such Tax Proceeding is governed under subchapter C of Chapter 63 of the Code, as amended by the Bipartisan
Budget Act of 2015 (or any similar provision of state, local or non-U.S. Law), the Company shall, and shall cause its eligible
Subsidiaries to, (i) timely make an election under Section 6226 of the Code (or any similar provision of state, local or non-U.S.
Law) in accordance with applicable Law, and (ii) to the extent any Member has a prior consent right to the making of any such
election, to use reasonable efforts cause each such Member to consent to the making of such election.
(e)
The Company shall provide a certificate signed by an officer of the Company, prepared in a manner consistent and in accordance
with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that the Company is not, and has
not been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation”
within the meaning of Section 897(c)(2) of the Code, and that no interest in the Company is a “U.S. real property interest”
within the meaning of Section 897(c) of the Code, and a form of notice to the IRS prepared in accordance with the provisions of Treasury
Regulations Section 1.897-2(h)(2), in each case in form and substance reasonably satisfactory to the Purchaser; provided, that the Company
shall promptly notify Purchaser, and in all cases no later than 7 Business Days prior to the Closing, if it determines that it will not
be able to deliver such certificate and form of notice as contemplated herein, and following such notice Purchaser and the Company shall
reasonably cooperate to establish any other available exemption from withholding under Section 1445 of the Code.
Section 6.12
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 as soon as reasonably practicable, including preparing
and filing as soon as practicable all documentation to effect all necessary notices, reports and other filings and to otherwise effect,
consummate, confirm or evidence the Transactions and carry out the purposes of this Agreement.
Section 6.13
The Preparation of Proxy Statement/Registration Statement; Shareholders’ Meeting and Approvals.
(a)
Registration Statement and Prospectus.
(i) As promptly as practicable
after the execution of this Agreement and receipt by the Purchaser of the PCAOB Financial Statements, the Updated 1H Financial Statements
and any other audited or unaudited financial statements of the Target Companies that are required by applicable Law to be included in
the Proxy Statement/Registration Statement, (x) the Purchaser and the Company shall jointly prepare and the Purchaser shall file with
the SEC, mutually acceptable materials (such agreement not to be unreasonably withheld, conditioned or delayed by the Purchaser or the
Company) that shall include the proxy statement to be filed with the SEC as part of the Registration Statement and sent to the Purchaser
Shareholders relating to the Purchaser Shareholders’ Meeting (such proxy statement, together with any amendments or supplements
thereto, the “Proxy Statement”), and (y) the Purchaser shall prepare (with the Target Companies’ and their respective
Representatives reasonable cooperation) and file with the SEC the Registration Statement, in which the Proxy Statement will be included
as a prospectus (the “Proxy Statement/Registration Statement”), in connection with the registration under the Securities
Act of (A) the shares of Domesticated Purchaser Common Stock and Domesticated Purchaser Warrants to be issued in exchange for the issued
and outstanding Purchaser Ordinary Shares and the Cayman Purchaser Warrants, respectively, in the Domestication, (B) the shares of Domesticated
Purchaser Common Stock that constitute the Aggregate Consideration, (C) the shares of Domesticated Purchaser Common Stock issuable upon
conversion of the shares of Domesticated Purchaser Series A Preferred Stock to be issued in exchange for Company Class A Convertible
Preferred Units, in each case, to the extent such registration is permitted under the Securities Act and (D) the shares of Domesticated
Purchaser Common Stock issuable upon exercise of the Domesticated Purchaser Series A Investor Warrants to be issued in exchange for Company
Class A Preferred Investor Warrants (collectively, the “Registration Statement Securities”). The filing fees payable
to the SEC in connection with the Proxy Statement/Registration Statement will be paid by the Purchaser as a Purchaser Transaction Cost.
Each of the Purchaser and the Company shall use its reasonable best efforts to cause the Proxy Statement/Registration Statement to comply
with the rules and regulations promulgated by the SEC, to have the Registration Statement declared effective under the Securities Act
as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the
Transactions. The Purchaser also agrees to use its reasonable best efforts to obtain all necessary state securities law or “blue
sky” permits and approvals required to carry out the transactions contemplated hereby, and the Company shall furnish all information
concerning the Target Companies and any of their respective members or stockholders as may be reasonably requested in connection with
any such action. Each of the Purchaser and the Company agrees to furnish to the other party all information concerning itself, its Subsidiaries,
officers, directors, managers, stockholders, and other equityholders and information regarding such other matters as may be reasonably
necessary or advisable or as may be reasonably requested in connection with the Proxy Statement/Registration Statement, a Current Report
on Form 8-K pursuant to the Exchange Act in connection with the Transactions, or any other statement, filing, notice or application made
by or on behalf of the Purchaser or the Target Companies to any regulatory authority (including Nasdaq) in connection with the Transactions
(the “Offer Documents”).
(ii) To the extent not
prohibited by Law, the Purchaser will advise the Company, reasonably promptly after the Purchaser receives notice thereof, of the
time when the Proxy Statement/Registration Statement has become effective or any supplement or amendment has been filed, of the
issuance of any stop order or the suspension of the qualification of the Domesticated Purchaser Common Stock for offering or sale in
any jurisdiction, of the initiation or written threat of any proceeding for any such purpose, or of any request by the SEC for the
amendment or supplement of the Proxy Statement/Registration Statement or for additional information. To the extent not prohibited by
Law, the Company and their counsel shall be given a reasonable opportunity to review and comment on the Proxy Statement/Registration
Statement and any Offer Document each time before any such document is filed with the SEC, and the Purchaser shall give reasonable
and good faith consideration to any comments made by the Company and its counsel. To the extent not prohibited by Law, the Purchaser
shall provide the Company and their counsel with (i) any comments or other communications, whether written or oral, that the
Purchaser or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement/Registration
Statement or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to
participate in the response of the Purchaser to those comments and to provide comments on that response (to which reasonable and
good faith consideration shall be given), including by participating with the Company or its counsel in any discussions or meetings
with the SEC.
(iii) Each of the
Purchaser and the Company shall use reasonable best efforts to ensure that none of the information supplied by or on its behalf for
inclusion or incorporation by reference in (A) the Proxy Statement/Registration Statement will, at the time the Proxy
Statement/Registration Statement is filed with the SEC, at each time at which it is amended and at the time it becomes effective
under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, not misleading or (B) the Proxy Statement will, at the date it is first mailed
to the Purchaser Shareholders and at the time of the Purchaser Shareholders’ Meeting, 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.
(iv)
If at any time prior to the Closing any information relating to the Company, the Purchaser or any of their respective Subsidiaries,
Affiliates, directors or officers is discovered by the Company or the Purchaser, which is required to be set forth in an amendment or
supplement to the Proxy Statement or the Proxy Statement/Registration Statement, so that neither of such documents would include any misstatement
of a material fact or omit to state any material fact necessary to make the statements therein, with respect to the Proxy Statement, in
light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify
the other parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to
the extent required by Law, disseminated to the Purchaser Shareholders.
(b)
Purchaser Shareholder Approval. The Purchaser shall (a) as promptly as practicable after the Proxy Statement/Registration
Statement is declared effective under the Securities Act, (i) cause the Proxy Statement to be disseminated to Purchaser Shareholders in
compliance with applicable Law, (ii) solely with respect to the following clause (1), duly (1) give notice of and (2) convene and hold
an extraordinary general meeting of Purchaser Shareholders (the “Purchaser Shareholders’ Meeting”) in accordance
with the Purchaser’s Organizational Documents and applicable Law, for a date no later than thirty (30) Business Days following the
date the Registration Statement is declared effective, and (iii) solicit proxies from the holders of Purchaser Ordinary Shares to vote
in favor of each of the Transaction Proposals, and (b) provide its public shareholders with the opportunity to elect to effect a Redemption.
The Purchaser shall, through its board of directors, recommend to the Purchaser Shareholders the (A) adoption and approval of this Agreement
in accordance with applicable Law and exchange rules and regulations, (B) approval of the Domestication, (C) adoption of the Purchaser
Charter upon Domestication and the Purchaser Bylaws upon Domestication, including any separate or unbundled advisory proposals as are
required to implement the foregoing, (D) approval of the issuance of shares of Domesticated Purchaser Common Stock as required by Nasdaq
Listing Rule 5635, (E) approval of the adoption by the Purchaser of the Equity Incentive Plan, (F) appointment of the director nominees
in accordance with Section 6.18 of this Agreement, (G) adoption and approval of any other proposals as the SEC (or staff member
thereof) may indicate are necessary in its comments to the Registration Statement or correspondence related thereto, (H) adoption and
approval of any other proposals as reasonably agreed by the Purchaser and the Company to be necessary or appropriate in connection with
the Transactions, and (I) adjournment of the Purchaser Shareholders’ Meeting to a later date or dates, if necessary or convenient,
(x) to permit further solicitation and vote of proxies in the event that there are insufficient votes for any of the foregoing, (y) if
the Purchaser determines that one or more of the conditions to Closing is not or will not be satisfied or waived or (z) to facilitate
the Domestication, the Merger or any other Transaction (such proposals in (A) through (H), together, the “Transaction Proposals”),
and include such recommendation in the Proxy Statement. The board of directors of Purchaser shall not, except as required by applicable
Law, withdraw, amend, qualify or modify its recommendation to the Purchaser Shareholders that they vote in favor of the Transaction Proposals
(together with any withdrawal, amendment, qualification or modification of its recommendation to the Purchaser Shareholders described
in the Recitals hereto, a “Modification in Recommendation”). To the fullest extent permitted by applicable Law, (x)
the Purchaser’s obligations to establish a record date for, duly call, give notice of, convene and hold the Purchaser Shareholders’
Meeting shall not be affected by any Modification in Recommendation, (y) the Purchaser agrees to establish a record date for, duly call,
give notice of, convene and hold the Purchaser Shareholders’ Meeting and submit for approval the Transaction Proposals and (z) the
Purchaser agrees that if the Purchaser Shareholder Approval shall not have been obtained at any such Purchaser Shareholders’ Meeting,
then the Purchaser shall promptly continue to take all such necessary actions, including the actions required by this Section 6.13(b),
and hold additional Purchaser Shareholders’ Meetings in order to obtain the Purchaser Shareholder Approval provided, that,
without the consent of the Company, the Purchaser Shareholders’ Meeting may not be adjourned to a date that is more than fifteen (15) days after the
date for which the Purchaser Shareholders’ Meeting was originally scheduled (excluding any adjournments required by applicable Law).
(c)
Extension. As promptly as reasonably practicable after the execution of this Agreement, the Purchaser shall take all actions
necessary to obtain an extension until the Outside Date to the deadline set forth in the Purchaser’s Organizational Documents for
the Purchaser to consummate a Business Combination, including the preparation and filing of a proxy statement with the SEC (such proxy
statement, together with any amendments or supplements thereto, the “Extension Proxy Statement”), to seek approval
of the Purchaser Shareholders to extend such deadline to the Outside Date in accordance with the Purchaser’s Organizational Documents
(as amended, supplemented or modified) (the “Purchaser Extension”). The preliminary Extension Proxy Statement shall
be filed with the SEC no later than October 14, 2024. Each of the Purchaser and the Company agrees to promptly furnish to the other Party
all information concerning itself, its Subsidiaries, Affiliates, officers, directors, managers, Purchaser Shareholders and other equityholders
and information regarding such matters as may be reasonably necessary or advisable or as may be reasonably requested in connection with
the Extension Proxy Statement or the Purchaser Extension. Notwithstanding anything to the contrary in this Agreement, in connection with
the Purchaser Extension, Purchaser shall be permitted, to the extent required by the Purchaser’s Organizational Documents, to use
the proceeds held in the Trust Account to redeem the Purchaser Class A Ordinary Shares of holders who properly exercise their right to
redemption in accordance with the Purchaser’s Organizational Documents.
Section 6.14
Employee Matters.
(a)
The Purchaser and the Company shall use their commercially reasonable efforts to agree to a form of equity incentive plan that
provides for grants of equity-based incentive of awards to eligible service providers of the Company (the “Equity Incentive Plan”),
such agreement by either Party not to be unreasonably withheld, conditioned or delayed. If such Equity Incentive Plan is in agreed form
prior to the effective date of the Registration Statement, the Purchaser shall, prior to the Closing Date, adopt such Equity Incentive
Plan and submit it for approval of the Purchaser’s Shareholders at the Purchaser Shareholders’ Meeting. The Equity Incentive
Plan shall have an initial share reserve which shall be mutually agreed between the Purchaser and the Company based upon benchmarking
against peer public companies and in consultation with an independent outside compensation advisor, such consent not to be unreasonably
withheld, conditioned or delayed. The Purchaser and the Company shall determine the initial award grants that shall be granted to eligible
service providers identified by the Company and agreed to by the Purchaser as soon as reasonably practicable following the Effective Time
and in a form of award agreement, in each case, as mutually agreed between the Purchaser and the Company based upon benchmarking against
peer public companies (taking into account employee hiring needs and the development stage nature of the Company) and in consultation
with an independent outside compensation advisor, such agreement by either Party not to be unreasonably withheld, conditioned or delayed.
(b) Notwithstanding anything
herein to the contrary, each of the parties to this Agreement acknowledges and agrees that all provisions contained in this Section
6.14 are included for the sole benefit of Purchaser and the Company, and that nothing in this Agreement, whether express or implied,
(i) shall be construed to establish, amend, or modify any employee benefit plan, program, agreement or arrangement, (ii) shall limit
the right of Purchaser, the Company or their respective Affiliates to amend, terminate or otherwise modify any Company Benefit Plan or
other employee benefit plan, agreement or other arrangement following the Closing Date, or (iii) shall confer upon any Person who is
not a party to this Agreement (including any equityholder, any current or former director, manager, officer, employee or independent
contractor of the Company, or any participant in any Company Benefit Plan or other employee benefit plan, agreement or other arrangement
(or any dependent or beneficiary thereof)), any right to continued or resumed employment or recall, any right to compensation or benefits,
or any third-party beneficiary or other right of any kind or nature whatsoever.
Section 6.15 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, issue a press release announcing
the execution of this Agreement (the “Signing Press Release”). Promptly after the issuance of the Signing Press Release
(but in any event within four (4) Business Days after the execution of this Agreement), 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. The Parties shall mutually agree upon and, as promptly as practicable after the Closing, 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 (but in any event within four (4) Business Days after the Closing), 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 Purchaser 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 or any Governmental Authority
in connection with the transactions contemplated hereby.
Section 6.16 Confidential
Information. (a) The Company hereby agrees that during the Interim Period and, in
the event that this Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination,
it shall, and shall cause its Affiliates and its and their respective Representatives to, except to the extent otherwise consented to
by Purchaser: (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, performing their obligations hereunder or thereunder, enforcing their rights
hereunder or thereunder, or in furtherance of their authorized duties on behalf of the Purchaser), 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 or any of its Affiliates or its or their respective
Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article VIII,
for a period of two (2) years after such termination, becomes legally obligated 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 the Purchaser’s sole cost and expense, a protective Order or other remedy or waive compliance with this Section
6.16(a), and (B) in the event that such protective Order or other remedy is not obtained, or the Purchaser waives compliance with
this Section 6.16(a) furnish only that portion of such Purchaser Confidential Information; provided, that with respect to Purchaser
Confidential Information constituting trade secrets under applicable Law and has been identified as such to the Company in writing prior
to or promptly after its disclosure to the Company or its Representatives, such covenants shall apply for as long as such Purchaser Confidential
Information constitutes a trade secret under applicable Law and continues to constitute Purchaser Confidential Information under this
Agreement. In the event that this Agreement is terminated and the transactions contemplated hereby are not consummated, the Company shall,
and shall cause its Representatives to, promptly deliver to the Purchaser or destroy (at the 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, its Affiliates and its and their respective
Representatives shall be entitled to keep any records required by (i) applicable Law or (ii) legal, fiduciary or professional obligation,
(iii) in accordance with written document retention policies and procedures and/or (iv)
contained in any electronic file created pursuant to bona fide backup storage or archival processes in the ordinary course of business;
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 and Merger Sub hereby agree that during the Interim Period and, in the event that this Agreement is terminated in accordance
with Article VIII, for a period of two (2) years after such termination, they shall, and shall cause their respective Affiliates
and their Representatives to, except to the extent otherwise consented to by the Company: (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, 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, Merger Sub or any of its Representatives, during the Interim Period or,
in the event that this Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination,
becomes legally obligated 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 cost and expense, a protective Order
or other remedy or waive compliance with this Section 6.16(b) and (B) in the event that such protective Order or other remedy is
not obtained, or the Company waives compliance with this Section 6.16(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; provided, that with respect
to Company Confidential Information constituting trade secrets under applicable Law and that has been identified as such to the Purchaser
in writing prior to or promptly after its disclosure to the Purchaser or its Representatives, such covenants shall apply for as long as
such Company Confidential Information constitutes a trade secret under applicable Law and continues to constitute Company Confidential
Information under this Agreement. 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, Merger Sub and their respective
Affiliates and Representatives shall be entitled to keep any records required by applicable Law or legal, fiduciary or professional obligation,
in accordance with written document retention policies and procedures and/or contained in
any electronic file created pursuant to bona fide backup storage or archival processes in the ordinary course of business; 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, (i) the Purchaser, Merger Sub and their respective Representatives shall be
permitted to disclose any and all Company Confidential Information to the extent required by the Federal Securities Laws, (ii) no notice
or further action shall be required in respect of disclosure of the Company Confidential Information (or provision of access thereto)
to regulatory authorities or self-regulatory organizations having authority over the Purchaser, Merger Sub or their respective Representatives
in connection with routine regulatory examinations or pursuant to statutory requirements that are not targeted at the Target Companies,
the Transactions or the Company Confidential Information.
Section 6.17 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 Target Companies in existence on the Closing Date and make the same
available for inspection and copying by the Purchaser during normal business hours of the Company and its Subsidiaries, as
applicable, upon reasonable request and upon reasonable notice. No such books, records or documents shall be destroyed after the
seventh (7th) anniversary of the Closing Date by the Purchaser or its Subsidiaries (including any Target Company) without
first advising a representative of the Sponsor (or its successors or assigns) in writing and giving such representative a reasonable
opportunity to obtain possession thereof.
Section 6.18 Post-Closing
Board of Directors and Executive Officers.
(a) The
Parties shall take all necessary action, including the Purchaser 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
individuals (appointed in accordance and such that, as of the Closing, the Post-Closing Purchaser Board shall comply with Nasdaq rules)
to be determined by the Company and which such Post-Closing Purchaser Board shall consist of three classes of directors that are as evenly
sized as possible. Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing
Purchaser Board (i) the one (1) Person that is designated by the Purchaser prior to the Closing, which Person shall be subject to the
Company’s consent (such consent not to be unreasonably withheld, delayed or conditioned) and which shall serve in the class to be
elected at the next annual meeting, (ii) the chief executive officer of the Purchaser after the Closing and (iii) the remaining Persons,
all of whom will be designated by the Company prior to the Closing. At or prior to the Closing, the Company, if requested, and the Purchaser
shall provide each initial director with a customary director indemnification agreement, in form and substance reasonably acceptable to
such director, the Company and the Purchaser.
(b) The
Parties shall take all action necessary, including the Purchaser causing the executive officers of Purchaser to resign, so that the individuals
serving as the executive officers of the Purchaser immediately after the Closing will be individuals the Company desires to appoint to
such roles.
Section 6.19 Indemnification
of Directors and Officers; Tail Insurance.
(a) The
Parties agree that for a period of six (6) years from the Closing Date, the Parties shall, and shall cause the Purchaser, Merger Sub and
the Target Companies to, maintain in effect the exculpation, indemnification and advancement of expenses provisions in favor of any individual
who, at or prior to the Closing, was a director, officer, employee or agent of the Purchaser, Merger Sub and the Target Companies, as
the case may be, or who, at the request of the Parties, as the case may be, served as a director, officer, member, manager, trustee or
fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively,
with such individual’s heirs, executors or administrators, (each, together with such Person’s heirs, executors or administrators,
a “D&O Indemnified Party”)), of the Purchaser’s, Merger Sub’s and the Target Companies’ respective
Organizational Documents as in effect immediately prior to the Closing Date or in any indemnification agreements of the Purchaser, Merger
Sub or any of the Target Companies, on the one hand, with any D&O Indemnified Party, on the other hand, as in effect immediately prior
to the Closing Date, and the Parties shall, and shall cause the Purchaser, Merger Sub and the Target Companies to, not amend, repeal or
otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party;
provided, however, that all rights to indemnification or advancement of expenses in respect of any Legal Proceedings pending or asserted
or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and
after the Closing Date, the Purchaser shall cause the Target Companies to honor, in accordance with their respective terms, each of the
covenants contained in this Section 6.19 without limit as to time.
(b) At
or prior to the Closing, the Purchaser shall purchase a “tail” directors’ and officers’ liability insurance policy
(the “D&O Tail”) in respect of acts or omissions occurring prior to the Closing covering each such Person that
is a director or officer of the Purchaser or a Target Company currently covered by a directors’ and officers’ liability insurance
policy of the Purchaser or one or more Target Companies, respectively, on terms with respect to coverage, deductibles and amounts no less
favorable than those of such applicable policy in effect on the date of this Agreement for the six (6) year period following the Closing;
provided that in no event shall the Purchaser be required to expend on the premium thereof in excess of 350% of the aggregate annual premiums
currently payable by the Purchaser or the Target Companies, respectively, with respect to such current policies (the “Premium
Cap”); provided, further, that if such minimum coverage under any such D&O Tail is or becomes not available at the Premium
Cap, then any such D&O Tail shall contain the maximum coverage available at the Premium Cap. The Purchaser shall maintain the D&O
Tail in full force and effect for its full term and cause all obligations thereunder to be honored by the Target Companies, as applicable,
and no other party shall have any further obligation to purchase or pay for such insurance pursuant to this Section 6.19(b). No
claims made under or in respect of the D&O Tail related to any fiduciary or employee of any Target Company shall be settled without
the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned.
(c) The
rights of each D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Person may
have under the Organizational Documents of the Purchaser or any Target Company, any other indemnification arrangement, any Law or otherwise.
The obligations of the Purchaser and the Target Companies under this Section 6.19(c) shall not be terminated or modified after
the Closing in such a manner as to materially and adversely affect any D&O Indemnified Party without the consent of such D&O Indemnified
Party. The provisions of this Section 6.19 shall survive the Closing and expressly are intended to benefit, and are enforceable
by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 6.19.
(d) If
the Purchaser or, after the Closing, any Target Company, or any of their respective successors or assigns: (i) consolidates with or merges
into any other Person and shall not be the continuing or surviving entity of such consolidation or merger; or (ii) transfers or conveys
all or substantially all of its properties and assets to any Person, then, in each such case, proper provision shall be made so that the
successors and assigns of the Purchaser or such Target Company, as applicable, assume the obligations set forth in this Section 6.19.
Section 6.20 PIPE Investment.
The Purchaser shall use its reasonable best efforts to satisfy the conditions of the closing obligations contained in the subscription
agreements relating to the PIPE Investment and consummate the transactions contemplated thereby.
Section 6.21 Redemption.
In connection with the Purchaser Shareholders’ Meeting, the Purchaser agrees that it shall provide the holders of shares of Purchaser
Class A Ordinary Shares the opportunity to elect redemption of such shares of Purchaser Class A Ordinary Shares, as required by the Purchaser’s
Organizational Documents in the Redemption. Subject to receipt of the Purchaser Shareholder Approval, and at least one (1) day prior
to the Domestication, the Purchaser shall carry out the Redemption and use the proceeds held in the Trust Account to redeem the Purchaser
Class A Ordinary Shares of holders who properly exercise their right to redemption in accordance with the Purchaser’s Organizational
Documents.
Section
6.22 Domestication. Subject to receipt of the Purchaser Shareholder Approval, at least one
(1) day prior to the Closing, the Purchaser shall, in accordance with applicable Law, any applicable rules and regulations of the SEC,
the Nasdaq and the Purchaser’s Organizational Documents, as applicable, cause the Domestication to become effective, including
by (a) filing with the Delaware Secretary of State a certificate of domestication with respect to the Domestication, in form and substance
reasonably acceptable to the Purchaser and the Company, together with the Purchaser Charter upon Domestication, in each case, in accordance
with the provisions thereof and applicable Law, and (b) completing and making and procuring all those filings required to be made with
the Cayman Registrar in connection with the Domestication.
Section
6.23 Adoption of Proxy Statement/Registration Statement. Within one (1) Business Day of
the Closing Date, the post-Domestication Purchaser, as the successor to the pre-Domestication Purchaser, shall file a post-effective
amendment to the Proxy Statement/Registration Statement pursuant to Rule 414(d) of the Securities Act.
Section 6.24 Compliance.
Within 120 days following the Closing, the Company will implement a compliance program, including the adoption and implementation of
adequate risk-based policies and procedures reasonably designed in accordance with industry best practices and applicable published
U.S. governmental guidance, including U.S. Department of Justice guidance on corporate compliance programs, to ensure compliance
with (a) applicable Anti-Bribery Laws, including the internal-controls provisions imposed on issuers by the U.S. Foreign Corrupt
Practices Act of 1977, as amended; (b) the False Claims Act, (c) applicable federal and state Anti-Kickback laws, including the
Anti-Kickback Statute, and (d) Sanctions Laws and International Trade Laws.
Section 6.25 Seventh
A&R Company OA. Prior to closing, the Company shall adopt the Seventh A&R Company
OA in the form of a customary single member limited liability company agreement, in a form to be mutually agreed by the Purchaser and
the Company, such agreement by either Party not to be unreasonably withheld, conditioned or delayed.
Article
VII
CLOSING CONDITIONS
Section 7.01 Conditions
to Each Party’s Obligations. The obligations of each Party to consummate the
Transactions shall be subject to the satisfaction or written waiver (where permissible) by the Company and the Purchaser of the following
conditions:
(a) Required
Purchaser Shareholder Approval. The Purchaser Shareholder Approval shall have been obtained.
(b) 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.
(c) Registration
Statement. The Registration Statement shall have been declared effective under the Securities Act by the SEC and shall remain effective
as of the Closing, and no stop order or similar order suspending the effectiveness of the Registration Statement shall have been issued
and be in effect with respect to the Registration Statement and no proceedings for that purpose shall have been initiated or threatened
by the SEC and not withdrawn.
(d) Nasdaq
Listing. The shares of Domesticated Purchaser Common Stock to be issued in connection with the Transactions shall be conditionally
approved for listing upon the Closing on Nasdaq subject to any requirement to have a sufficient number of round lot holders of the Domesticated
Purchaser Common Stock (provided that such condition shall not apply to the extent the shares of Domesticated Purchaser Common Stock have
not been conditionally approved for listing due to a failure to meet any “market value of publicly held securities” or similarly
titled requirement as a result of the Company not permitting a sufficient number of shares of Domesticated Purchaser Common Stock to be
issued to non-Affiliates pursuant to Section 2.03 to be excluded from lock-up or other contractual restriction).
Section
7.02 Conditions to Obligations of the Company. In addition to the conditions specified in
Section 7.01, the obligations of the Company to consummate the Transactions shall be subject to the satisfaction or written waiver
(where permissible) by the Company of the following conditions:
(a) Representations
and Warranties. All of the representations and warranties of the Purchaser and Merger Sub 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 Purchaser Material Adverse Effect),
individually or in the aggregate, have not had and would not reasonably be expected to have a Purchaser Material Adverse Effect.
(b) Agreements
and Covenants. The Purchaser and Merger Sub shall have performed in all material respects all of their respective obligations and
complied in all material respects with all of their respective agreements and covenants under this Agreement to be performed or complied
with by them on or prior to the Closing Date.
(c) No
Purchaser Material Adverse Effect. No Purchaser Material Adverse Effect shall have occurred since the date of this Agreement that
is continuing.
(d) Domestication.
The Domestication shall have been completed as provided in Section 6.22 and a time-stamped copy of the certificate issued by the
Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company.
(e) Trust
Account. Purchaser shall have made appropriate arrangements to have the net proceeds remaining in the Trust Account (after giving
effect to all Redemptions) available to Purchaser at the Closing.
(f) 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 7.02(a), 7.02(b)
and 7.02(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 (after giving effect
to the Domestication) and (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.
(iii) ANCILLARY
DOCUMENTS. The Purchaser shall have delivered to the Company:
(A) A
copy of the A&R Registration Rights Agreement, duly executed by the Purchaser and the Sponsor; and
(B) A
copy of the Sponsor Lock-up Agreement, duly executed by the Purchaser and the Sponsor.
(g) Series
A Preferred Stock Investment; Sponsor-Related Persons Investment. (i) The Purchaser shall have filed the Series A Preferred Stock
Certificate of Designation with the Secretary of State of the State of Delaware, (ii) all conditions precedent to the closing of the Series
A Preferred Stock Investment to be fulfilled by the Purchaser, Sponsor or the Sponsor-Related Persons, and any of their respective Affiliates
shall have been satisfied (as determined by the parties to the Series A SPA in good faith) or waived in writing by the person(s) with
the authority to make such waiver (other than those conditions which, by their nature, are to be satisfied at the Closing of the Transactions
including to the extent that any such condition precedent is, or is dependent upon, the consummation of the Merger), and the closing of
the Series A Preferred Stock Investment shall be scheduled to occur substantially concurrently with the Closing, and (iii) the Sponsor-Related
Persons shall have delivered the purchase price for the Series A Preferred Stock and Preferred Investor Warrants to be purchased by the
Sponsor-Related Persons pursuant to the Series A SPA to the Escrow Agent (as defined in the Series A SPA).
Section 7.03 Conditions
to Obligations of the Purchaser and Merger Sub. In addition to the conditions specified
in Section 7.01, the obligations of the Purchaser and Merger Sub to consummate the Merger are subject to the satisfaction or written
waiver (where available) 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 Company Material Adverse Effect), individually or in
the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(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 the agreements and covenants (except for the requirement to provide the PCAOB Financial Statements and the Updated 1H Financial
Statements by the deadlines specified in Section 6.04) under this Agreement to be performed or complied with by it on or prior
to the Closing Date.
(c) No
Company Material Adverse Effect. No Company Material Adverse Effect shall have occurred with respect to the Target Companies, taken
as a whole, since the date of this Agreement that is continuing.
(d) 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 Section 7.03(a), 7.03(b)
and 7.03(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 Closing) and (B) the requisite resolutions of the Company’s board of managers 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 Transactions.
(iii) The
Company shall have delivered to the Purchaser:
(A) a
copy of the A&R Registration Rights Agreement, duly executed by the applicable Members; and
(B) A
properly completed and duly executed IRS Form W-9 or IRS Form W-8 of the applicable series from each Member.
(C)
Secion 7.04 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 VII to be satisfied if such failure was caused by the failure
of such Party or its Affiliates failure to comply with or perform any of its covenants or obligations set forth in this Agreement.
Article
VIII
TERMINATION AND EXPENSES
Section 8.01 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
the Company if there has been a Modification in Recommendation;
(c) by
the Company if the extension set forth in Section 6.13(c) or the Purchaser Shareholder Approval shall not have been obtained by reason
of the failure to obtain the required vote at the applicable Purchaser Shareholders’ Meeting duly convened therefor or at any adjournment
or postponement thereof;
(d) by
written notice by the Purchaser or the Company if any of the conditions to the Closing set forth in Article VII have not been satisfied
or waived by August 21, 2025 (the “Outside Date”); provided, however, the right to terminate this Agreement
under this Section 8.01(d) 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; provided, further, that, solely with respect to the Company’s right to terminate this Agreement
pursuant to this Section 8.01(d), the “Outside Date” shall automatically be extended by one (1) calendar day for every
calendar day after October 31, 2024 that the PCAOB Financial Statements or the Updated 1H Financial Statements are not delivered pursuant
to Section 6.04;
(e) 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 8.01(e) 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;
(f) 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 7.02(a) or Section 7.02(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 8.01(f) if at such time the Company is in material uncured breach of this
Agreement;
(g) 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 7.03(a) or Section 7.03(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 8.01(g) if at such time the Purchaser is in material uncured breach of this
Agreement;
(h) by
written notice by the Purchaser to the Company, if (i) all the conditions set forth in Section 7.01 and Section 7.02 have
been, and continue to be, satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, each
of which shall be capable of being satisfied if the Closing Date were the date of such termination), (ii) the Company fails to consummate
the Transactions on or prior to the day when the Closing is required to occur pursuant to Section 3.01, (iii) the Purchaser shall
have irrevocably confirmed in writing to the Company that it is ready, willing and able to consummate the Closing and (iv) the Company
fails to effect the Closing within five (5) Business Days following delivery of such confirmation; or
(i) by
written notice by the Company to the Purchaser, if (i) all the conditions set forth in Section 7.01 and Section 7.03 have
been, and continue to be, satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, each
of which shall be capable of being satisfied if the Closing Date were the date of such termination), (ii) the Purchaser fails to consummate
the Transactions on or prior to the day when the Closing is required to occur pursuant to Section 3.01, (iii) the Company shall
have irrevocably confirmed in writing to the Purchaser that it is ready, willing and able to consummate the Closing and (iv) the Purchaser
fails to effect the Closing within five (5) Business Days following delivery of such confirmation.
Section 8.02 Expense
Reimbursement.
(a) In
the event this Agreement is terminated by the Purchaser pursuant to Section 8.01(g) or Section 8.01(h), at a time when the
Company does not have a right to terminate this Agreement pursuant to Section 8.01(c), Section 8.01(f) or Section 8.01(i),
then the Company shall pay or cause to be paid to Purchaser any amounts due and owing under the Convertible Promissory Note within two
(2) Business Days after the date of such termination by wire transfer of same-day funds to one or more accounts designated by Purchaser.
(b) The
parties acknowledge that the agreements contained in this Section 8.02 are an integral part of the Transactions and that, without
these agreements, the parties hereto would not enter into this Agreement. In addition, if the Company fails to pay in a timely manner
any amount due to Purchaser pursuant to this Section 8.02, then (i) the Company shall reimburse Purchaser for all costs and expenses
(including disbursements and fees of counsel) incurred in the collection of such overdue amounts and (ii) the Company shall pay to Purchaser
interest on the amounts payable pursuant to this Section 8.02 from and including the date payment of such amounts was due to but
excluding the date of actual payment at a rate equal to three percent (3%) plus the prime rate set forth in The Wall Street Journal in
effect on the date such payment was required to be made.
(c) At Closing, so long as the Convertible Promissory Note is forgiven
by the holder thereof, the Purchaser shall issue to such holder shares of Series A Preferred Stock with an aggregate Stated Value (as
defined in the Series A Preferred Stock Certificate of Designation) equal to $1,250,000.
Section
8.03 Effect of Termination. This Agreement may only be terminated in the circumstances described
in Section 8.01 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 8.01 under which such termination is made. In the event
of the valid termination of this Agreement pursuant to Section 8.01, 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) Section 6.15, Section 6.16, Article IX, and this Section 8.03 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 9.15).
Article
IX
MISCELLANEOUS
Section
9.01 No Survival. Except (x) as otherwise contemplated by Section 8.03 or (y) in
the case of a Fraud Claim against a Person, none of the representations, warranties, covenants, obligations or other agreements in this
Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any
breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Closing (and there
shall be no liability after the Closing in respect thereof), except for those covenants and agreements contained herein that by their
terms expressly apply in whole or in part at or after the Closing, and then only with respect to any breaches occurring at or after the
Closing.
Section
9.02 Notices. All notices, consents, waivers and other communications hereunder shall be
in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered by facsimile or other electronic
means (including email), with evidence of transmission, (iii) one (1) 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). Actual notice is effective notice for all purposes hereunder.
| If to the Purchaser: |
with a copy (which will not constitute notice) to: |
| Inflection Point Acquisition Corp. II |
White & Case LLP |
| 167 Madison Avenue |
1221 Avenue of the Americas |
| Suite 205 #1017 |
New York, New York 10020 |
| New York, New York 10016 |
Attn: Joel Rubinstein |
| Attn: Michael Blitzer |
Email: joel.rubinstein@whitecase.com |
| Email: |
|
|
|
| If to the Company, to: |
with a copy (which will not constitute notice) to: |
| USA Rare Earth, LLC |
King & Spalding LLP |
| 100 W Airport Road, Stillwater, OK 74075 |
1100 Louisiana Street, Suite 4100 |
| Attn: David Kronenfeld |
Houston, TX 77002 |
| Email: |
Attn: Timothy FitzSimons; Trevor G. Pinkerton |
| |
Email: tfitzsimons@kslaw.com;
tpinkerton@kslaw.com |
Section
9.03 Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the Parties 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 Parties, 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.
Section
9.04 Third Parties. Except for the Persons granted the rights set forth in Section 6.19,
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 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.
Section
9.05 Governing Law. This Agreement, and all claims or causes of action based upon, arising
out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with,
the Laws of the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or
rules would require or permit the application of Laws of another jurisdiction, provided
that, for the avoidance of doubt, the laws of the Cayman Islands shall also apply to and, as applicable,
govern the Domestication.
Section
9.06 Jurisdiction. Any proceeding or Legal Proceeding based upon, arising out of or related
to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the
extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such
court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i)
submits to the exclusive jurisdiction of each such court in any such proceeding or Legal Proceeding, (ii) waives any objection it may
now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the proceeding
or Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any proceeding or Legal Proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall
be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise
proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Legal Proceeding, suit
or proceeding brought pursuant to this Section 9.06.
Section
9.07 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section
9.08 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.
Section
9.09 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.
Section
9.10 Amendment; Waiver. This Agreement may be amended, supplemented or modified only by
execution of a written instrument signed by the Purchaser and the Company. Any party to this Agreement may, at any time prior to the
Closing, by action taken by its board of directors or managers or other equivalent body or other officers or Persons thereunto duly authorized,
(a) extend the time for the performance of the obligations or acts of the other parties hereto, (b) waive any inaccuracies in the representations
and warranties (of another party hereto) that are contained in this Agreement or (c) waive compliance by the other parties hereto with
any of the agreements or conditions contained in this Agreement, but such extension or waiver shall be valid only if set forth in an
instrument in writing signed by the party granting such extension or waiver. Any waiver of any term or condition shall not be construed
as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition
of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of such rights.
Section
9.11 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 with respect to the subject matter contained herein.
Section
9.12 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 shareholders under the Cayman Companies Act or 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.
Section
9.13 Counterparts. This Agreement and each Ancillary Document may be executed and delivered
(including by facsimile or other electronic transmission) in 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.
Section
9.14 Legal Representation.
(a) Conflicts
and Privilege.
(i) The
Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), hereby agree that, in
the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x)
the Sponsor, the stockholders, shareholders or holders of other equity interests of the Purchaser or the Sponsor and/or any of their respective
directors, members, partners, officers, employees or Affiliates (collectively, the “IPXX Group”), on the one hand,
and (y) the Purchaser following the Closing, the Company and/or any member of the USARE Group, on the other hand, any legal counsel, including
White & Case LLP (“W&C”), that represented the Purchaser and/or the Sponsor prior to the Closing may represent
the Sponsor and/or any other member of the IPXX Group, in such dispute even though the interests of such Persons may be directly adverse
to the Purchaser and its Affiliates (following the Closing), and even though such counsel may have represented the Purchaser in a matter
substantially related to such dispute, or may be handling ongoing matters for the Purchaser and/or the Sponsor. The Purchaser and the
Company, on behalf of their respective successors and assigns (including, after the Closing), further agree that, as to all legally privileged
communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under,
or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Document or the transactions contemplated
hereby or thereby) between or among the Purchaser, the Sponsor and/or any other member of the IPXX Group, on the one hand, and W&C,
on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to
the IPXX Group after the Closing, and shall not pass to or be claimed or controlled by the Purchaser and its Affiliates (following the
Closing). Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with
the Purchaser or the Sponsor under a common interest agreement shall remain the privileged communications or information of the Purchaser.
(ii) The
Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), hereby agree that, in
the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x)
the stockholders, shareholders or holders of other equity interests of the Company and/or any of their respective directors, members,
partners, officers, employees or Affiliates (collectively, the “USARE Group”), on the one hand, and (y) the Company
(following the Closing) and/or any member of the IPXX Group, on the other hand, any legal counsel, including King & Spalding LLP (“K&S”)
that represented the Company prior to the Closing may represent any member of the USARE Group in such dispute even though the interests
of such Persons may be directly adverse to the Company (following the Closing), and even though such counsel may have represented the
Purchaser and/or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Company (following
the Closing). The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), further
agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution,
delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Document
or the Transactions) between or among the Company and/or any member of the USARE Group, on the one hand, and K&S, on the other hand,
the attorney/client privilege and the expectation of client confidence shall survive the Transactions. Notwithstanding the foregoing,
any privileged communications or information shared by the Purchaser prior to the Closing with the Company under a common interest agreement
shall remain the privileged communications or information of the Company (following the Closing).
(iii) K&S
has represented the USARE Group and the Target Companies with respect to the Transactions. All Parties recognize the commonality of interest
that exists and will continue to exist until the Closing, and the Parties agree that such commonality of interest should continue to be
recognized after the Closing. Specifically, the IPXX Group and, following the Closing, the Company, agree that they shall not, and shall
cause their Affiliates not to, seek to have K&S be disqualified from representing (a) any member of the USARE Group in connection
with any dispute that may arise between such parties and the IPXX Group or the Target Companies or (b) the Purchaser or any of the Target
Companies in connection with any dispute that may arise between such parties and the members of the USARE Group.
Section
9.15 Waiver of Claims Against Trust. The Company acknowledges that the Purchaser is a special
purpose company with the powers and privileges to effect a Business Combination. The Company further acknowledges that, as described
in the IPO Prospectus available at www.sec.gov, substantially all of the Purchaser assets consist of the cash proceeds of the Purchaser’s
initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in the Trust
Account for the benefit of the Purchaser, its public shareholders and the underwriters of the Purchaser’s initial public offering.
The Company acknowledges that it has been advised by the Purchaser that, except with respect to interest earned on the funds held in
the Trust Account that may be released to the Purchaser to pay its franchise Tax, income Tax and similar obligations, the Trust Agreement
provides that cash in the Trust Account may be disbursed only (i) if the Purchaser completes the transactions which constitute a
Business Combination, then to those Persons and in such amounts as described in the IPO Prospectus; (ii) if the Purchaser fails
to complete a Business Combination within the allotted time period and liquidates, subject to the terms of the Trust Agreement, to the
Purchaser in limited amounts to permit the Purchaser to pay the costs and expenses of its liquidation and dissolution, and then to the
Purchaser Shareholders; and (iii) if the Purchaser holds a shareholder vote to amend the Purchaser’s Organizational Documents
to modify the substance or timing of the obligation to redeem 100% of the Purchaser Class A Ordinary Shares if the Purchaser fails to
complete a Business Combination within the allotted time period or to otherwise modify any other material provision of the Purchaser’s
Organizational Documents relating to its shareholders’ rights or its pre-initial Business Combination activity, then for the redemption
of any Purchaser Ordinary Shares properly tendered in connection with such vote. For and in consideration of the Purchaser entering into
this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Company, on behalf of itself, its Affiliates and its
and their respective Representatives, hereby irrevocably waives any right, title, interest or claim of any kind they have or may have
in the future in or to any monies in the Trust Account and agrees not to seek recourse against the Trust Account or any funds distributed
therefrom to the Purchaser’s public shareholders for any reason whatsoever; provided, that (x) nothing herein shall
serve to limit or prohibit the Company’s right to pursue a claim against the Purchaser for legal relief against monies or other
assets held outside the Trust Account, for specific performance or other equitable relief in connection with the consummation of the
transactions (including a claim for the Purchaser to specifically perform its obligations under this Agreement and cause the disbursement
of the balance of the cash remaining in the Trust Account (after giving effect to the Redemptions) to the Company in accordance with
the terms of this Agreement and the Trust Agreement) so long as such claim would not affect the Purchaser’s ability to fulfill
its obligation to effectuate the redemptions and (y) nothing herein shall serve to limit or prohibit any claims that the Company
may have in the future against the Purchaser’s assets or funds that are not held in the Trust Account (including any funds that
have been released from the Trust Account other than to the Purchaser’s public shareholders and any assets that have been purchased
or acquired with any such funds).
Section
9.16 Company and Purchaser Disclosure Letters. The Company Disclosure Letter and the Purchaser
Disclosure Letter (including, in each case, any section thereof) referenced herein are a part of this Agreement as if fully set forth
herein. All references herein to the Company Disclosure Letter and/or the Purchaser Disclosure Letter (including, in each case, any section
thereof) shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made
by a party in the applicable Disclosure Letter, or any section thereof, with reference to any section of this Agreement or section of
the applicable Disclosure Letter shall be deemed to be a disclosure with respect to such other applicable sections of this Agreement
or sections of applicable Disclosure Letter if it is reasonably apparent on the face of such disclosure that such disclosure is responsive
to such other section of this Agreement or section of the applicable Disclosure Letter. Certain information set forth in the Disclosure
Letters is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure
of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection
with the representations and warranties made in this Agreement, nor shall such information be deemed to establish a standard of materiality.
Article
X
DEFINITIONS
Section 10.01 Certain
Definitions. For purpose of this Agreement, the following capitalized terms have the
following meanings:
“A&R Registration
Rights Agreement” has the meaning specified in the Recitals.
“Acquisition Proposal”
has the meaning specified in Section 6.06(a).
“Additional Purchaser
SEC Reports” has the meaning specified in Section 5.06(a).
“Affiliate”
means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control
with, such specified Person, whether through one or more intermediaries or otherwise. The term “control” (including the terms
“controlling”, “controlled by” and “under common control with”) means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of
voting securities, by Contract or otherwise.
“Aggregate Base Consideration”
means the number of shares of Domesticated Purchaser Common Stock equal to the quotient of: (a) (i) the Base Purchase Price minus (ii)
the Closing Indebtedness except as set forth in Schedule 10-A, divided by (b) the Redemption Price.
“Aggregate Consideration”
means the Aggregate Base Consideration and the Aggregate Earn-out Consideration.
“Aggregate Earn-out
Consideration” has the meaning specified in Section 2.04(a).
“Agreement”
has the meaning specified in the Preamble.
“Alternative Transaction”
has the meaning specified in Section 6.06(a).
“Ancillary Documents”
means each of the agreements and instruments contemplated by this Agreement or otherwise related to the transactions contemplated in this
Agreement, in each case to be executed and delivered on the date hereof or on or prior to the Closing Date, including this Agreement (together
with the Company Disclosure Letter and the Purchaser Disclosure Letter).
“Anti-Bribery Law”
means the U.S. Foreign Corrupt Practices Act of 1977, as amended; the UK Bribery Act 2010, and any rules or regulations promulgated thereunder;
the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions and related implementing legislation; and any other applicable Laws relating to bribery or corruption in any governing
jurisdiction.
“Antitrust Laws”
has the meaning specified in Section 6.09(b).
“Approvals”
has the meaning specified in Section 4.09.
“Audited Company
Financials” has the meaning specified in Section 4.06(a).
“Base Purchase Price”
means $800,000,000.
“Business Combination”
has the meaning specified in Article 1.1 of the Purchaser’s Organizational Documents as in effect on the date hereof.
“Business Day”
means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or, for so long as the Purchaser
remains domiciled in Cayman Islands, Governmental Authorities in the Cayman Islands that are authorized or required by Law to close.
“CARES Act”
means the Coronavirus, Aid, Relief and Economic Security Act, Pub. L. 116–136 (116th Cong.) (Mar. 27, 2020), and any amendment thereof,
successor law, or executive order, executive memo, administrative or other guidance or legislation published with respect thereto by any
Governmental Authority.
“Cayman Companies
Act” has the meaning specified in the Recitals.
“Cayman Purchaser
Private Placement Warrants” means the warrants to purchase Purchaser Class A Ordinary Shares, at an initial exercise price of
$11.50 per share, purchased by the Sponsor concurrently with the Purchaser’s IPO.
“Cayman Purchaser
Public Warrants” means the warrants to purchase Purchaser Class A Ordinary Shares, at an initial exercise price of $11.50 per
share, included in the Cayman Purchaser Units sold in the Purchaser’s IPO.
“Cayman Purchaser
Units” has the meaning specified in the Recitals.
“Cayman Purchaser
Warrant” has the meaning specified in the Recitals.
“Cayman Registrar”
means the Cayman Islands Registrar of Companies.
“Certificate of Merger”
has the meaning specified in the Recitals.
“Change of Control”
means any transaction or series of transactions the result of which is: (a) the acquisition by any Person or “group” (as defined
in the Exchange Act) of Persons of direct or indirect beneficial ownership of securities representing 50% or more of the combined voting
power of the then outstanding securities of the Purchaser; (b) a merger, consolidation, reorganization or other business combination,
however effected, resulting in any Person or “group” (as defined in the Exchange Act) acquiring at least 50% of the combined
voting power of the then outstanding securities of the Purchaser or the surviving Person outstanding immediately after such combination;
or (c) a sale of all or substantially all of the assets of the Purchaser.
“Class A Preferred
Investor Warrant Consideration” has the meaning specified in Section 2.02(b).
“Class A Preferred
SPA” has the meaning specified in the Recitals.
“Class A-1 Preferred
SPA” has the meaning specified in the Recitals.
“Class A-2 Preferred
SPA” has the meaning specified in the Recitals.
“Class A Preferred
Unit Investment” has the meaning specified in the Recitals.
“Class A-1 Preferred
Unit Investment” has the meaning specified in the Recitals.
“Class A-2 Preferred
Unit Investment” has the meaning specified in the Recitals.
“Class A Preferred
Unit Investors” has the meaning specified in the Recitals.
“Class A-1 Preferred
Unit Investors” has the meaning specified in the Recitals.
“Class A-2 Preferred
Unit Investors” has the meaning specified in the Recitals.
“Closing”
has the meaning specified in Section 3.01.
“Closing Date”
has the meaning specified in Section 3.01.
“Closing Filing”
has the meaning specified in Section 6.15(b).
“Closing Indebtedness”
means the aggregate Indebtedness of the Target Companies as of immediately prior to the Effective Time.
“Closing Press Release”
has the meaning specified in Section 6.15(b).
“Code”
means the U.S. Internal Revenue Code of 1986, as amended, and any successor statute thereto, as amended.
“Common Stock Price”
means the share price equal to the closing sale price of one share of Domesticated Purchaser Common Stock as reported on Nasdaq (or the
exchange on which the shares of Domesticated Purchaser Common Stock are then listed) for a period of at least twenty (20) days out of
thirty (30) consecutive Trading Days ending on the Trading Day immediately prior to the date of determination (as adjusted as appropriate
to reflect any stock splits, reverse stock splits, stock dividends (including any dividend or distribution of securities convertible into
the Domesticated Purchaser Common Stock), extraordinary cash dividend (which adjustment shall be subject to the reasonable mutual agreement
of the Purchaser and the Company), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change
or transaction with respect to the Domesticated Purchaser Common Stock).
“Company”
has the meaning specified in the Preamble.
“Company Benefit
Plan” 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 any
Target Company for the benefit of any employee or terminated employee of any Target Company.
“Company Class A
Convertible Preferred Units” means the Company Class A-1 Convertible Preferred Units and the Company Class A-2 Convertible Preferred
Units.
“Company Class A-1
Convertible Preferred Units” means the Class A-1 convertible preferred units of the Company.
“Company Class A-2
Convertible Preferred Units” means the Class A-1 convertible preferred units of the Company.
“Company Class A
Preferred Investor Warrants” means the Company Class A-1 Preferred Investor Warrants and the Company Class A-2 Preferred Investor
Warrants.
“Company Class A-1
Preferred Investor Warrants” means the warrants of the Company sold to Class A-1 Preferred Unit Investors or others pursuant
to the Class A-1 Preferred SPA or a similar securities purchase agreement executed prior to the date hereof.
“Company Class A-2
Preferred Investor Warrants” means the warrants of the Company sold to Class A-2 Preferred Unit Investors or others pursuant
to the Class A-2 Preferred SPA or a similar securities purchase agreement executed prior to the date hereof.
“Company Class A
Units” means the Class A units of the Company.
“Company Class B
Units” means the Class B units of the Company.
“Company Class B
Warrants” means the warrants outstanding as of the date of this Agreement to purchase Company Class B Units.
“Company Class C
Convertible Preferred Units” means the Class C convertible preferred units of the Company.
“Company Class C
Convertible Preferred Warrants” means the warrants outstanding as of the date of this Agreement to purchase Company Class B
Units.
“Company Class C-1
Convertible Preferred Units” means the Class C-1 convertible preferred units of the Company.
“Company Confidential
Information” means all confidential or proprietary documents and information concerning the Target Companies 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
Units” means the Company Class C Convertible Preferred Units and Company Class C-1 Convertible Preferred Units.
“Company Disclosure
Letter” has the meaning specified in the Preamble to Article IV.
“Company Financials”
has the meaning specified in Section 4.06(a).
“Company Fully Diluted
Capital” means the sum (without duplication) of the aggregate number of (i) Company Class A Units that are issued and outstanding
immediately prior to the Effective Time, (ii) Company Class B Units that are issued and outstanding immediately prior to the Effective
Time (including all Company Class B Units issued upon conversion of all outstanding Company Class C Convertible Preferred Units and Company
Class C-1 Convertible Preferred Units pursuant to Section 2.01), (iii) all Company Class A Units and Company Class B Units issuable
upon full exercise of all issued and outstanding Company Warrants (calculated using the treasury method of accounting on a cashless exercise
basis) and (iv) all Company Class A Units and Company Class B Units issuable upon full exercise, exchange or conversion of all issued
and outstanding Company Incentive Units (calculated using the treasury method of accounting on a cashless exercise basis).
“Company Incentive
Plan” means the Second Amended and Restated USA Rare Earth, LLC Incentive Plan dated as of August 26, 2022, and approved by
the Managers, as amended by the First Amendment dated as of November 2, 2022, and the Second Amendment, dated as of February 10, 2024,
to the Second Amended and Restated USA Rare Earth, LLC Incentive Plan, and as may be further amended, supplemented or restated from time
to time by the Managers.
“Company Incentive
Units” means the incentive units of the Company.
“Company
Incentive Unit Exchange Calculation” means (i) the number of Company Incentive Units held by a Person times a fraction
where (x) the numerator equals the value of the Per Unit Base Consideration (assuming one share of Domesticated Purchaser Common Stock
has a value equal to the Redemption Price) minus the Distribution Threshold (as defined in the Company Incentive Plan and provided
for in the applicable Company Incentive Unit award agreement) applicable to such Company Incentive Unit (which may, for the avoidance
of doubt, be $0), and (y) the denominator equals the value of the Per Unit Base Consideration (assuming one share of Domesticated Purchaser
Common Stock has a value equal to the Redemption Price). To the extent the Company Incentive Unit Exchange Calculation would not result
in a whole number, the number of Class A Units shall be rounded down as applicable so that only whole numbers of Class A Units are exchanged
for Company Incentive Units pursuant to Section 2.03(a)(ii).
“Company IP”
means any and all Intellectual Property that is owned or purported to be owned (in whole or in part), licensed, used or held for use by
the Target Companies.
“Company IP Licenses”
means any Intellectual Property licenses, sublicenses and other agreements or permissions that a Target Company is party to or is otherwise
authorized to use or practice any Intellectual Property under, excluding Off-the-Shelf Software and non-exclusive licenses of Intellectual
Property granted in agreements with suppliers, customers or end users in the ordinary course of business where the license is not the
primary purpose of the agreement.
“Company Leased Real
Properties” has the meaning specified in Section 4.16(b).
“Company Material
Adverse Effect” means any event, state of facts, condition, change, development, circumstance, occurrence or effect (collectively,
“Events”), that (i) has had, or would reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the business, assets, results of operations or financial condition of the Target Companies, taken as a whole, or (ii)
does or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the ability
of the Target Companies to consummate the Transactions; provided, however, that in no event would any of the following, alone or in combination,
be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Company Material Adverse
Effect”: (a) any change in applicable Laws or GAAP or any interpretation thereof following the date of this Agreement, (b) any change
in interest rates or economic, political, business or financial market conditions generally, (c) the taking of any action required by
this Agreement or any Ancillary Document, (d) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic
eruptions or similar occurrences), pandemic (including any COVID-19 Measures) or change in climate, (e) any acts of terrorism or war,
the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions, (f) any failure
of the Target Companies to meet any projections or forecasts (provided that clause (f) shall not prevent a determination that any Event
not otherwise excluded from this definition of Company Material Adverse Effect underlying such failure to meet projections or forecasts
has resulted in a Company Material Adverse Effect), (g) any Events generally applicable to the industries or markets in which the Company
and its Subsidiaries operate (including increases in the cost of products, supplies, materials or other goods purchased from third party
suppliers), (h) the announcement of this Agreement and consummation of the transactions contemplated hereby, including any termination
of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement or consummation) on
relationships, contractual or otherwise, with any landlords, customers, suppliers, distributors, partners or employees of the Target Companies,
(i) any matter set forth on the Company Disclosure Letter, or (j) any action taken by, or at the request of, the Purchaser; provided,
further, that any Event referred to in clauses (a), (b), (d), (e) or (g) above may be taken into account in determining if a Company Material
Adverse Effect has occurred to the extent it has a disproportionate and adverse effect on the business, assets, results of operations
or condition (financial or otherwise) of the Target Companies, taken as a whole, relative to similarly situated companies in the industry
in which the Target Companies conduct their respective operations, but only to the extent of the incremental disproportionate effect on
the Target Companies, taken as a whole, relative to similarly situated companies in the industry in which the Target Companies conduct
their respective operations.
“Company Material
Contract” has the meaning specified in Section 4.13(a).
“Company Mining Rights”
has the meaning specified in Section 4.26(a).
“Company OA”
means the limited liability operating agreement of the Company, as then currently in effect.
“Company Owned Properties”
has the meaning specified in Section 4.16(a).
“Company Parties”
has the meaning specified in Section 9.14(a)(iii).
“Company Permits”
has the meaning specified in Section 4.11.
“Company Personal
Property Leases” has the meaning specified in Section 4.17.
“Company Real Property
Leases” has the meaning specified in Section 4.16(b).
“Company Registered
IP” has the meaning specified in Section 4.14(a).
“Company Securities”
means, collectively, the Company Class A Units, the Company Class A-1 Convertible Preferred Units, the Company Class A-2 Convertible Preferred
Units, the Company Class B Units, the Company Class C Convertible Preferred Units, the Company Class C-1 Convertible Preferred Units,
the Company Incentive Units, the Company Class B Warrants, the Company Class C Convertible Preferred Warrants and all other units, warrants
and other securities of the Company.
“Company Software”
means any and all Software which any of the Target Companies owns or purports to own, in whole or in part.
“Company Transaction
Costs” means all fees, costs and expenses of the Target Companies, in each case, incurred prior to and through the Closing Date
in connection with the negotiation, preparation and execution of this Agreement, the other Ancillary Documents and the consummation of
the Transactions, including: (a) all change of control bonus payments, retention or similar payments payable solely as a result of the
consummation of the Transactions pursuant to arrangements (whether written or oral) entered into prior to the Closing Date whether payable
before (to the extent unpaid), on or following the Closing Date (excluding any “double-trigger” payments), and the employer
portion of payroll Taxes payable as a result of the foregoing amounts; (b) all severance payments, retirement payments or similar payments
or success fees payable pursuant to arrangements (whether written or oral) entered into prior to the Closing Date and which are payable
in connection with the consummation of the Transactions, whether payable before (to the extent unpaid), on or following the Closing Date
(excluding any “double-trigger payments”), and the employer portion of payroll Taxes payable as a result of the foregoing
amounts; (c) all professional or transaction, deal, brokerage, legal, accounting, financial advisory or any similar fees payable in connection
with the consummation of the Transactions; and (d) all costs, fees and expenses related to the D&O Tail; but excluding (i) any and
all costs, fees and expenses incurred in connection with the preparation and filing of the Registration Statement (and any registration
statement filed with the SEC in connection therewith) and the review and/or approval thereof by the SEC, (ii) any and all costs, fees
and expenses incurred in connection with the listing on Nasdaq of the shares of Domesticated Purchaser Common Stock issued in connection
with the Transactions, (iii) Transfer Taxes, and (iv) any other amounts payable by the Purchaser hereunder.
“Company Units”
means, collectively, the Company Class A Units, the Company Class B Units, the Company Convertible Units, the Company Class A Convertible
Preferred Units, the Company Incentive Units and all other units of the Company.
“Company Warrants”
means the Company Class B Warrants, the Company Class C Convertible Preferred Warrants and all other warrants to purchase any units or
other equity interests of the Company.
“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.
“Continental”
means the Continental Stock Transfer & Trust Company.
“Contracts”
means all legally binding contracts, contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments,
purchase order, licenses (and all Company IP Licenses and 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).
“Convertible Promissory
Note” means a convertible promissory note, issued by the Purchaser to the Sponsor or an Affiliate of the Sponsor, pursuant to
which the Purchaser may borrow up to $2,500,000 from the Sponsor, related to ongoing expenses reasonably related to the business of the
Purchaser and the consummation of a business combination.
“Copyleft Terms”
has the meaning specified in Section 4.14(e).
“Copyrights”
has the meaning set for in the definition of “Intellectual Property”.
“COVID-19”
means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemic or disease outbreaks.
“COVID-19 Measures”
means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure,
sequester, safety or other Law, directive, guidelines or recommendations promulgated by any industry group or any Governmental Authority,
including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response
to COVID- 19, including the CARES Act, Families First Act, the Payroll Tax Executive Order and IRS Notices 2020-22, 2020-65 and 2021-11.
“D&O Indemnified
Party” has the meaning specified in Section 6.19(a).
“D&O Tail”
has the meaning specified in Section 6.19(b).
“DGCL”
has the meaning specified in the Recitals.
“Disclosure Letters”
means, collectively, the Company Disclosure Letter and the Purchaser Disclosure Letter.
“DLLCA”
has the meaning specified in the Recitals.
“Domesticated Purchaser
Common Stock” means, following the Domestication, common stock of the Purchaser, par value $0.0001 per share.
“Domesticated Purchaser
Series A Investor Warrants” has the meaning specified in the Recitals.
“Domesticated Purchaser
Series A Preferred Stock” has the meaning specified in the Recitals.
“Domesticated Purchaser
Warrant” has the meaning specified in the Recitals.
“Domestication”
has the meaning specified in the Recitals.
“Draft Company Financials”
has the meaning specified in Section 4.06(a).
“Earn-out Exchange
Ratio” means the Earnout Shares divided by the Company Fully Diluted Capital.
“Earnout Period”
means the time period beginning on the date that is first anniversary of the Closing Date and ending on the date that is the sixth anniversary
of the Closing Date.
“Earnout Shares”
means the up to 10,000,000 shares of Domesticated Purchaser Common Stock that may be issued to the Eligible Stockholders pursuant to Section
2.04.
“Effective Time”
has the meaning set forth in Section 1.02(a).
“Eligible Stockholder”
means a holder of Company Class A Units, Company Class B Units, Company Convertible Units, Company Incentive Units or Company Warrants
as of immediately prior to the Effective Time and each of their respective successors and assigns.
“Enforceability Exceptions”
has the meaning as specified in Section 5.02.
“Environmental Law”
means any Law in any way relating to (a) the protection of human health and safety, (b) the environment, (c) 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), (d) pollution, or (e) Hazardous Materials, including the Comprehensive Environmental Response, Compensation and Liability
Act, 42 USC §9601 et seq., the Resource Conservation and Recovery Act, 42 USC §6901 et seq., the Toxic Substances Control Act,
15 USC §2601 et seq., the Federal Water Pollution Control Act, 33 USC §1251 et seq., the Clean Air Act, 42 USC §7401 et
seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC §136 et seq., the Occupational Safety and Health Act, 29 USC
§651 et seq. (to the extent it relates to exposure to Hazardous Materials), the Asbestos Hazard Emergency Response Act, 15 USC §2641
et seq., the Safe Drinking Water Act, 42 USC §300f et seq., the Oil Pollution Act of 1990, 33 USC §2701 et seq., and analogous
state acts.
“Environmental Liabilities”
means, in respect of any Person, all Liabilities, obligations, responsibilities, Remedial Legal Proceedings, losses, damages, costs, and
expenses (including all reasonable fees, disbursements, and expenses of counsel, experts, and consultants and costs of investigation and
feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand by any other Person or in
response to any violation of Environmental Law, whether known or unknown, accrued or contingent, whether based in contract, tort, implied
or express warranty, strict liability, criminal or civil statute, to the extent based upon, related to, or arising under or pursuant to
any Environmental Law, Environmental Permit, Order, or Contract with any Governmental Authority or other Person, that relates to any environmental,
health or safety condition, violation of Environmental Law, or a Release or threatened Release of Hazardous Materials.
“Environmental Permits”
has the meaning specified in Section 4.21(a).
“Equity Incentive
Plan” has the meaning specified in Section 6.14(a).
“ERISA”
means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate”
means each “person” (as defined in Section 3(9) of ERISA) which together with a Target Company would be deemed to be a “single
employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Ratio”
means the Aggregate Base Consideration divided by the Company Fully Diluted Capital.
“Excluded Unit”
has the meaning specified in Section 2.03(a)(i).
“Extension”
has the meaning specified in Section 6.03(a).
“Extension Proxy
Statement” has the meaning specified in Section 6.13(c).
“Federal Securities
Law” has the meaning specified in Section 6.07.
“Fraud Claim”
means any claim based upon intentional fraud as defined under the common law of the State of Delaware.
“GAAP”
means generally accepted accounting principles as in effect in the United States of America.
“Governmental Authority”
means any federal, state, municipal, local or other foreign or domestic governmental, quasi-governmental, or administrative body, instrumentality,
department. or agency, any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving
panel or body, or any government-owned entity.
“Hazardous Material”
means any waste, gas, liquid or other substance or material that is defined, listed, classified or designated as a “hazardous substance”,
“pollutant”, “contaminant”, “hazardous waste”, “regulated substance”, “hazardous
chemical”, “toxic chemical”, or “waste” (or by any similar term) under any Environmental Law, or any other
material regulated, or that could result in the imposition of Liability or responsibility, under any Environmental Law, including oil,
petroleum, petroleum products and by-products, petroleum breakdown products, asbestos, radioactive materials, polychlorinated biphenyls,
radon, mold, urea formaldehyde insulation and per- and polyfluoroalkyl substances.
“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 (other than real estate leases and any other leases that would be required to be capitalized only upon adoption of
ASC 842), (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 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, (g) all obligations secured by a Lien securing debt for borrowed money on any property of such
Person (other than Permitted Liens), (h) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment
of any Indebtedness of such Person and (i) all obligation described in clauses (a) through (h) 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 any and all intellectual or proprietary property and all rights, title, and interest therein or thereto arising anywhere in the
world, including all United States, international and foreign: (i) patents and patent applications, patent improvements, disclosures and
inventions, (whether patentable or unpatentable and whether or not reduced to practice), including any continuations, divisions, continuations
in part, renewals, divisionals, extensions, substitutions, reexaminations, reissues or foreign counterparts of any of the foregoing (“Patents”);
(ii) all trade names, trade dress, trademarks, service marks, slogans, logos or internet domain name registrations, social media usernames,
handles, and any other similar identifiers of source of origin, including all goodwill associated therewith, together with all registrations
and applications relating thereto (“Trademarks”); (iii) copyrights (whether registered or unregistered), original works
of authorship, copyrightable works and subject matter, together with all registrations and applications relating thereto (“Copyrights”);
(iv) all proprietary databases and data; (v) all industrial designs and any registrations and applications therefor throughout the world;
(vi) Trade Secrets, (vii) Software and data, databases, compilations, and any other electronic data files, including any and all collections
of data, whether machine readable or otherwise; (viii) rights to sue or recover and retain damages and costs and attorneys’ fees
for the past, present or future infringement, dilution, misappropriation, or other violation of any of the foregoing anywhere in the world;
(ix) any and all other intellectual or industrial property rights protectable by applicable law in any jurisdiction; and (x) all issuances,
renewals, registrations and applications of or for any of the foregoing.
“Intended Tax Treatment(s)”
has the meaning specified in the Recitals.
“Interim Period”
has the meaning specified in Section 6.01(a).
“International Trade
Laws” means (a) all U.S. import and export Laws (including those Laws administered by the U.S. Departments of Commerce (Bureau
of Industry and Security)) codified at 15 C.F.R., Parts 700-774; Homeland Security (Customs and Border Protection) codified at 19 C.F.R.,
Parts 1-192; State (Directorate of Defense Trade Controls) codified at 22 C.F.R., Parts 103, 120-130; and the Treasury (Office of Foreign
Assets Control) codified at 31 C.F.R., Parts 500-598) and (b) all comparable applicable Laws outside the United States.
“IPO” means
the initial public offering of Cayman Purchaser Units pursuant to the IPO Prospectus.
“IPO Prospectus”
means the final prospectus of the Purchaser, dated as of May 24, 2023 (File No. 333-271128).
“IPXX Group”
has the meaning specified in Section 9.14(a)(i).
“IRS” means
the U.S. Internal Revenue Service (or any successor Governmental Authority).
“IT Assets”
technology, devices, computers, hardware, Software (including firmware and middleware), systems, sites, servers, networks, workstations,
routers, hubs, circuits, switches, interfaces, websites, platforms, data communications lines, automated networks and control systems,
cloud computing arrangements, and all other information or operational technology, telecommunications, or data processing assets, facilities,
systems services, or equipment, and all data stored therein or processed thereby, and all associated documentation, in each case, owned
or leased by, licensed to, or used by the Target Companies in the conduct of their respective businesses.
“JOBS Act”
has the meaning specified in Section 5.06(f).
“K&S”
has the meaning specified in Section 9.14(a)(ii).
“Knowledge”
means, with respect to (i) the Company, the actual knowledge, after reasonable inquiry, of the individuals set forth on Schedule 10-B
of the Company Disclosure Letter and (ii) the Purchaser, the actual knowledge, after reasonable inquiry, of the individuals set forth
on Schedule 10-A of the Purchaser Disclosure Letter.
“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.
“Legal Proceeding”
means any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint,
stipulation, assessment or arbitration, or examination, or any request (including any request for information), inquiry, hearing, proceeding
or investigation, by or before any Governmental Authority.
“Liabilities”
means any and all liabilities, Indebtedness, Legal Proceedings 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).
“Lien”
means any mortgage, deed of trust, pledge, security interest, attachment, right of first refusal, right of first offer, option, proxy,
voting trust, license, encumbrance, easement, covenant, 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.
“Managers”
means the Persons who are managers of the Company pursuant to the Company OA.
“Material Current
Government Contract” has the meaning specified in Section 4.10.
“Members”
means the Persons who are member of the Company pursuant to the Company OA.
“Member Support Agreement”
means that certain Member Support Agreement, dated as of the date hereof (as it may be amended or supplemented from time to time), by
and between the Purchaser, the Company and the Members party thereto.
“Merger”
has the meaning specified in the Recitals.
“Merger Sub”
has the meaning specified in the Preamble.
“Mining Rights”
means all interests and rights in mining claims, concessions, exploration, reconnaissance, exploitation or extraction rights, surface
rights, subsurface rights, access rights or similar rights, that are held by way of Approvals, leases or otherwise.
“Modification in
Recommendation” has the meaning specified in Section 6.13(b).
“Nasdaq”
has the meaning specified in Section 5.06(a).
“OFAC”
has the meaning specified in Section 4.25(c).
“Off-the-Shelf Software”
means “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for
Software commercially available to the public on standard terms and conditions with an annual cost of less than $100,000 per year.
“Offer Documents”
has the meaning specified in Section 6.13(a)(i).
“Open Source Software”
means any code or software governed by any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or
the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license, including any license
approved by the Open Source Initiative or any Creative Commons License.
“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.
“Outside Date”
has the meaning specified in Section 8.01(d).
“Owned Intellectual
Property” means any and all Intellectual Property which any of the Target Companies owns (or purports to own), in whole or in
part, and includes the Company Software and all Company Registered IP.
“Party(ies)”
has the meaning specified in the Preamble.
“Patents”
has the meaning set forth in the definition of “Intellectual Property”.
“PCAOB”
means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“PCAOB Financial
Statements” has the meaning specified in Section 6.04(a).
“Per Class A Convertible
Preferred Unit Consideration” has the meaning specified in Section 2.02(a).
“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 yet due and payable or (ii)
being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto in accordance
with GAAP; (b) mechanics’, materialmen’s, carriers’, workers’, repairers’ and other similar liens arising
or incurred in the ordinary course of business relating to obligations as to which there is no default on the part of the applicable Target
Company or the validity of which are being contested in good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP; (c) zoning, entitlement, environmental or conservation restrictions and other land use and environmental
regulations imposed by Governmental Authorities which, to the Knowledge of the Company, are not violated in any material respects; (d)
non-monetary Liens of record, so long as such matters do not materially interfere with or detract from the Target Companies’ ability
to conduct its business at such property; (e) all matters that would be disclosed on an accurate survey of the Target Companies’
real property; (f) Liens incurred or deposits made in the ordinary course of business in connection with social security; (g) Liens on
goods in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business; (h) Liens
arising under this Agreement or any Ancillary Document; or (i) non-exclusive licenses of Owned Intellectual Property granted to customers,
vendors or service providers in the ordinary course of business.
“Person”
means an individual, corporation, company, 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.
“Per Unit Base Consideration”
has the meaning specified in Section 2.02(c).
“Per Unit Earn-out
Consideration” has the meaning specified in Section 2.02(c).
“PIPE Investment”
means the purchase from the Purchaser either shares of Domesticated Purchaser Common Stock, shares of one or more series of Purchaser
preferred stock or convertible debt securities of Purchaser (excluding, for the avoidance of doubt, the Series A Preferred Stock Investment)
with such purchases to be consummated prior to or substantially concurrently with the Closing (but, for the avoidance of doubt, no earlier
than the calendar day after the day in which the Domestication is consummated) and solely considered “PIPE Investment” for
purposes of this Agreement to the extent that the terms of any such purchase have been approved in writing by the Company
“Post-Closing Purchaser
Board” has the meaning specified in Section 6.18(a).
“Premium Cap”
has the meaning specified in Section 6.19(b).
“Pro Rata Share”
means, for each Eligible Stockholder, a percentage determined by dividing (a) the total number of shares of Domesticated Purchaser Common
Stock issued to such Eligible Stockholder in the Merger in exchange for such Eligible Stockholder’s Company Class A Units, Company
Class B Units, Company Convertible Units, Company Incentive Units and Company Warrants divided by the total number of shares of Domesticated
Purchaser Common Stock issued to all Eligible Stockholder in the Merger in exchange for the Company Class A Units, Company Class B Units,
Company Convertible Units, Company Incentive Units and Company Warrants.
“Proxy Statement”
has the meaning specified in Section 6.13(a)(i).
“Proxy Statement/Registration
Statement” has the meaning specified in Section 6.13(a)(i).
“Public Certifications”
has the meaning specified in Section 5.06(a).
“Purchaser”
has the meaning specified in the Preamble.
“Purchaser Bylaws
upon Domestication” has the meaning specified in the Recitals.
“Purchaser Charter
upon Domestication” has the meaning specified in the Recitals.
“Purchaser Class
A Ordinary Shares” means prior to the Domestication, Class A ordinary shares of the Purchaser, par value $0.0001 per share.
“Purchaser Class
B Ordinary Shares” means prior to the Domestication, Class B ordinary shares of the Purchaser, par value $0.0001 per share.
“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 or any of 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 Purchaser or its Representatives to the Company or any of its 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 Target Companies.
“Purchaser Disclosure
Letter” has the meaning specified in the Preamble to Article V.
“Purchaser Extension”
has the meaning specified in Section 6.13(c).
“Purchaser Material
Adverse Effect” means any change, event, or occurrence, that, individually or when aggregated with other changes, events, or
occurrences has had a materially adverse effect on the business, assets, financial condition or results of operations of the Purchaser;
provided, however, that no change or effect related to any of the following, alone or in combination, shall be taken into account in determining
whether a Purchaser Material Adverse Effect has occurred: (i) the announcement of this Agreement and consummation of the transactions
contemplated hereby, including any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable
to such announcement or consummation) on relationships, contractual or otherwise, with any landlords, customers, suppliers, distributors,
partners or employees of the Purchaser or Merger Sub; (ii) the taking of any action required by this Agreement or any Ancillary Document;
(iii) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences),
pandemic or change in climate, (iv) any acts of terrorism or war, the outbreak or escalation of hostilities, geopolitical conditions,
local, national or international political conditions; (v) the Redemption; (vi) any breach of any covenants, agreements or obligations
of any Class A Preferred Units Investor, Series A Preferred Stock Investor or investor in any PIPE Investment, in each case who is not
Inflection Point Asset Management or an Affiliate of Inflection Point Asset Management, under any Class A Preferred SPA, Series A SPA
or other similar agreement related to financing the Company or Purchaser (including any breach of such Person’s obligations to fund
any amounts thereunder when required); (vii) changes or proposed changes in applicable Law, regulations or interpretations thereof or
decisions by courts or any Governmental Authority after the date of this Agreement; (viii) changes or proposed changes in GAAP (or any
interpretation thereof) after the date of this Agreement; or (ix) any downturn in general economic conditions, including changes in the
credit, debt, securities, financial, capital or reinsurance markets (including changes in interest or exchange rates, prices of any security
or market index or commodity or any disruption of such markets), in each case, in the United States or anywhere else in the world.
“Purchaser Ordinary
Shares” means the Purchaser Class A Ordinary Shares and the Purchaser Class B Ordinary Shares.
“Purchaser SEC Reports”
has the meaning specified in Section 5.06(a).
“Purchaser Shareholder
Approval” means the approval of (i) those Transaction Proposals identified in clauses (B) and (C) and of Section 6.13(b),
in each case, by special resolution under Cayman Islands Law, being an affirmative vote of the holders of a majority of at least two-thirds
of the outstanding Purchaser Ordinary Shares entitled to vote, who attend and vote thereupon (as determined in accordance with the Purchaser’s
Organizational Documents) at the Purchaser Shareholders’ Meeting, (ii) those Transaction Proposals identified in clauses (A), (D)
(F) and (G) of Section 6.13(b), in each case, by an ordinary resolution under Cayman Islands Law, being an affirmative vote of
the holders of at least a majority of the outstanding Purchaser Ordinary Shares entitled to vote, who attend and vote thereupon (as determined
in accordance with the Purchaser’s Organizational Documents), and (iii) with respect to any other proposal proposed to the Purchaser
Shareholders, the requisite approval required under the Purchaser’s Organizational Documents, the Cayman Companies Act or any other
applicable Law, in each case, at a Purchaser Shareholders’ Meeting.
“Purchaser Shareholders”
means the holders of the Purchaser Ordinary Shares.
“Purchaser Shareholders’
Meeting” has the meaning specified in Section 6.13(b).
“Purchaser Transaction
Costs” means: (a) all fees, costs and expenses of the Purchaser incurred prior to and through the Closing Date in connection
with the negotiation, preparation and execution of this Agreement, the other Ancillary Documents and the consummation of the Transactions
and the Extension, whether paid or unpaid prior to the Closing, including any and all professional or transaction related costs, fees
and expenses of legal, accounting and financial advisors, consultants, auditors, accountants and brokers, including any deferred underwriting
commissions being held in the Trust Account (with respect to deferred underwritten expenses, not to exceed the amount set forth in Schedule
10.01-B); and (b) any Indebtedness of the Purchaser owed to its Affiliates or shareholders; provided that, without the written consent
of the Company, the Purchaser Transaction Costs shall not exceed the amount set forth in Schedule 10.01-B of the Purchaser Disclosure
Letter. For the avoidance of doubt, Purchaser Transaction Costs shall not include any fees, costs or expenses incurred in connection with
any other transaction engaged in by the Purchaser, including any fees (including any banker’s, broker’s or legal fees) of
Purchaser, Sponsor or any of its their Affiliates, whenever incurred, to the extent such fees, costs or expenses exceed $400,000 in the
aggregate.
“Redemption”
has the meaning specified in the Recitals.
“Redemption Price”
shall mean an amount equal to the price at which each Purchaser Class A Ordinary Share may
be redeemed pursuant to the Redemption.
“Registration Statement”
means the Registration Statement on Form S-4, or other appropriate form, including any pre-effective or post-effective amendments
or supplements thereto, to be filed with the SEC by Purchaser under the Securities Act with respect to the Registration Statement Securities.
“Registration Statement
Securities” has the meaning specified in Section 6.13(a)(i).
“Related Person”
means any officer, director, manager, employee, trustee or beneficiary of a Target Company or any of its Affiliates and any immediate
family member of any of the foregoing.
“Release”
means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, migrating or leaching into the
indoor or outdoor environment, or into or out of any property.
“Remedial Legal Proceeding”
means all actions 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 indoor or outdoor environment, (iii)
perform pre-remedial studies and investigations or post-remedial monitoring and care, or (iv) correct or otherwise respond to 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.
“Sanctioned Jurisdiction”
has the meaning specified in Section 4.25(c).
“Round Top Project”
means the Company’s above-ground deposit, located in Round Top Mountain, Hudspeth County, Texas, which contains several rare earth
elements and lithium.
“Sanctions Laws”
means applicable trade, economic and financial sanctions Laws, regulations, embargoes, and restrictive measures administered or enforced
by (i) the United States (including without limitation the U.S. Department of the Treasury’s Office of Foreign Assets Control, the
U.S. Department of State, and the U.S. Department of Commerce), (ii) the European Union and enforced by its member states, (iii) the United
Nations, (iv) His Majesty’s Treasury, or (v) any country in which the Purchaser or any Target Company or any agent acting on behalf
of the forgoing is performing activities.
“SDN List”
has the meaning specified in Section 4.25(c).
“SEC” means
the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Securities Act”
means the Securities Act of 1933, as amended.
“Series A Preferred
Stock Certificate of Designation” has the meaning specified in the Recitals.
“Series A Preferred
Stock Investment” has the meaning specified in the Recitals.
“Series A Preferred
Stock Investors” has the meaning specified in the Recitals.
“Series A SPA”
has the meaning specified in the Recitals.
“Seventh A&R
Company OA” has the meaning specified in the Recitals.
“Signing Filing”
has the meaning specified in Section 6.15(b).
“Signing Press Release”
has the meaning specified in Section 6.15(b).
“Software”
means any and all software, firmware and computer programs and applications, including any and all source code, descriptions, schematics,
specifications, flow charts, object code, middleware, utilities, computer programs, application programming interfaces, algorithms, plugins,
libraries, subroutines, tools, drivers, microcode, scripts, batch files, instruction sets and macros, models, methodologies and other
work product used in design, plan, organize and develop any of the foregoing, in each case of the foregoing whether in source code, executable
or object code form, documentation related thereto including user manuals, user documentation, and training materials, filed, records
and other work product related to any of the foregoing and all software modules, tools and databases and collections of data.
“Sponsor”
means Inflection Point Holdings II LLC, a Delaware limited liability company.
“Sponsor Forfeiture”
has the meaning specified in the Recitals.
“Sponsor Lock-Up
Agreement” has the meaning specified in the Recitals.
“Sponsor-Related
Persons” means Inflection Point Fund I LP, Newtyn Partners, LP and Newtyn TE Partners, LP.
“Sponsor Share Conversion”
has the meaning specified in the Recitals.
“Sponsor Support
Agreement” has the meaning specified in the Recitals.
“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.
“Surviving Company”
has the meaning specified in the Recitals.
“Target Companies”
means, collectively, the Company and its direct and indirect Subsidiaries.
“Tax Return”
means any return, form, declaration, election, disclosure, 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 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 in the nature of a tax,
together with any interest and any penalties, additions to tax or additional amounts with respect thereto imposed by a Governmental Authority.
“Top Customers”
has the meaning specified in Section 4.24(a).
“Top Suppliers”
has the meaning specified in Section 4.24(b).
“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”
has the meaning set for in the definition of “Intellectual Property”.
“Trading Day”
means any day on which shares of Domesticated Purchaser Common Stock are actually traded on the principal securities exchange or securities
market on which shares of Domesticated Purchaser Common Stock are then traded.
“Transaction Proposals”
has the meaning specified in Section 6.13(b).
“Transactions”
has the meaning specified in the Recitals.
“Transfer Taxes”
has the meaning specified in Section 6.11(c).
“Treasury Regulations”
means the regulations (including temporary regulations) promulgated by the United States Department of the Treasury pursuant to and in
respect of provisions of the Code. All references herein to sections of the Treasury Regulations shall include any corresponding provisions
or provisions of succeeding, similar or substitute, temporary or final Treasury Regulations.
“Triggering Event”
means either Triggering Event I or Triggering Event II.
“Triggering Event
I” shall occur if, within the Earnout Period, the Common Stock Price of the Domesticated Purchaser Common Stock is greater than
or equal to $15.00 per share.
“Triggering Event
II” shall occur if, within the Earnout Period, the Common Stock Price of the Domesticated Purchaser Common Stock is greater
than or equal to $20.00 per share.
“Trust Account”
means that certain trust account established pursuant to the Trust Agreement.
“Trust Agreement”
has the meaning specified in Section 5.14.
“Trustee”
has the meaning specified in Section 5.14.
“Updated 1H Financial
Statements” has the meaning specified in Section 6.04(b).
“USARE Group”
has the meaning specified in Section 9.14(a)(ii).
“W&C”
has the meaning specified in Section 9.14(a)(i).
“Warrant Agreement”
means that certain Warrant Agreement, dated as of May 24, 2023, by and between the Purchaser and Continental, as warrant agent.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS}
IN WITNESS WHEREOF,
each Party hereto has caused this Business Combination Agreement to be signed and delivered as of the date first written above.
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The Purchaser: |
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INFLECTION POINT ACQUISITION CORP. II |
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By: |
/s/ Michael Blitzer |
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Name: |
Michael Blitzer |
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Title: |
Chairman and Chief Executive Officer |
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The Company: |
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USA RARE EARTH, LLC |
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|
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By: |
/s/ David Kronenfeld |
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Name: |
David Kronenfeld |
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Title: |
Chief Legal Officer |
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|
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Merger Sub: |
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|
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IPXX MERGER SUB, LLC |
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|
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By: |
Inflection Point Acquisition Corp. II, its sole and managing member |
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|
| |
By: |
/s/ Michael Blitzer |
| |
Name: |
Michael Blitzer |
| |
Title: |
Chairman and Chief Executive Officer |
{Signature Page to Business
Combination Agreement}
Exhibit A – Form of Purchaser Charter
Upon Domestication
CERTIFICATE OF INCORPORATION
OF
USA RARE EARTH, INC.
* * * * *
ARTICLE I
NAME
The name of the Corporation
is USA Rare Earth, Inc. (the “Corporation”).
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered
office of the Corporation in the State of Delaware is [●]. The name of the registered agent of the Corporation in the State of Delaware
at such address is [●].
ARTICLE III
PURPOSE
The purpose of the Corporation
is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the General Corporation Law
of the State of Delaware (the “DGCL”).
ARTICLE IV
CAPITAL STOCK
A. The
total number of shares of all classes of stock that the Corporation shall have authority to issue is 800,000,000, which shall be divided
into two classes as follows:
750,000,000 shares of common
stock, par value $0.0001 per share (“Common Stock”); and
50,000,000 shares of preferred
stock, par value $0.0001 per share (“Preferred Stock”).
B. The
Board of Directors of the Corporation (the “Board of Directors”) is hereby expressly authorized, by resolution or resolutions,
to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to each such series,
to fix the designation of such series, the powers (including voting powers), preferences and relative, participating, optional and other
special rights, and the qualifications, limitations or restrictions thereof, of such series of Preferred Stock and the number of shares
of such series, which number the Board of Directors may, except where otherwise provided in the designation of such series, increase (but
not above the total number of authorized shares of Preferred Stock) or decrease (but not below the number of shares of such series then
outstanding) and as may be permitted by the DGCL. The powers, preferences and relative, participating, optional and other special rights
of, and the qualifications, limitations or restrictions thereof, of each series of Preferred Stock, if any, may differ from those of any
and all other series at any time outstanding. Except as otherwise expressly provided in this Certificate of Incorporation (including any
certificate of designation relating to any series of Preferred Stock), no vote of the holders of shares of Preferred Stock or Common Stock
shall be a prerequisite to the issuance of any shares of any series of the Preferred Stock so authorized in accordance with this Certificate
of Incorporation.
C. Each
holder of record of Common Stock, as such, shall have one vote for each share of Common Stock that is outstanding in his, her or its name
on the books of the Corporation on all matters on which stockholders are entitled to vote generally. The holders of shares of Common Stock
shall not have cumulative voting rights. Except as otherwise required by law, holders of Common Stock shall not be entitled to vote on
any amendment to this Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock)
that relates solely to the terms, number of shares, powers, designations, preferences or relative, participating, optional or other special
rights (including, without limitation, voting rights), or to qualifications, limitations or restrictions thereof, of one or more outstanding
series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or
more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any certificate of designation relating
to any series of Preferred Stock) or pursuant to the DGCL.
D. Except
as otherwise required by law, holders of any series of Preferred Stock shall be entitled to only such voting rights, if any, as shall
expressly be granted thereto by this Certificate of Incorporation (including any certificate of designation relating to such series of
Preferred Stock).
E. Subject
to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock
having a preference over or the right to participate with the Common Stock with respect to the payment of dividends and other distributions
in cash, property or shares of stock of the Corporation, dividends and other distributions may be declared and paid ratably on the Common
Stock out of the assets of the Corporation that are legally available for this purpose at such times and in such amounts as the Board
of Directors in its discretion shall determine.
F. Upon
the dissolution, liquidation or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities
of the Corporation and subject to the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series
of stock having a preference over or the right to participate with the Common Stock with respect to the distribution of assets of the
Corporation upon such dissolution, liquidation or winding up of the Corporation, the holders of Common Stock shall be entitled to receive
the remaining assets of the Corporation available for distribution to its stockholders ratably in proportion to the number of shares held
by them.
G. The
number of authorized shares of Preferred Stock or Common Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote
thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto) on a one vote per share basis,
and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately as a class shall be required therefor,
unless a vote of any such holder is required pursuant to this Certificate of Incorporation (including any certificate of designation relating
to any series of Preferred Stock).
ARTICLE V
AMENDMENT OF THE CERTIFICATE OF INCORPORATION
AND BYLAWS
A. In
addition to any vote required by applicable law or this Certificate of Incorporation (including any certificate of designation relating
to any series of Preferred Stock), the amendment, alteration, repeal or rescission of, in whole or in part, or the adoption of any provision
inconsistent with, the following provisions in this Certificate of Incorporation shall require the affirmative vote of the holders of
at least 66⅔% in voting power of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together
as a single class: this Article V, Article VI, Article VII, Article VIII, Article IX and Article X(B).
B. The
Board of Directors is expressly authorized to make, repeal, alter, amend and rescind, in whole or in part, the bylaws of the Corporation
(as in effect from time to time, the “Bylaws”) without the assent or vote of the stockholders in any manner not inconsistent
with the laws of the State of Delaware or this Certificate of Incorporation. In addition to any vote of the holders of any class or series
of capital stock of the Corporation required by this Certificate of Incorporation (including any certificate of designation relating to
any series of Preferred Stock), by the Bylaws or applicable law, the affirmative vote of the holders of at least 66 2/3% in voting power
of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required
in order for the stockholders of the Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of the Bylaws
or to adopt any provision inconsistent therewith.
ARTICLE VI
BOARD OF DIRECTORS
A. Except
as otherwise provided in this Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. Subject to the rights of holders of any series of Preferred Stock to elect directors,
the number of directors of the Corporation shall be fixed from time to time solely by resolution of the majority of the Board of Directors.
No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
B. Subject
to the rights of holders of any series of Preferred Stock to elect directors, the Board of Directors shall be and is divided into three
classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one third of the total
number of directors constituting the entire Board of Directors. The Board of Directors is authorized to assign members of the Board of
Directors already in office to Class I, Class II or Class III at the time such classification becomes effective.
C. Subject
to the rights granted to the holders of any one or more series of Preferred Stock then outstanding, each director shall serve for a term
ending on the date of the third annual meeting of stockholders following the annual meeting of stockholders at which such director was
elected; provided that each director initially assigned to Class I shall serve for a term expiring at the Corporation’s first annual
meeting of stockholders held after the effectiveness of this Certificate of Incorporation; each director initially assigned to Class II
shall serve for a term expiring at the Corporation’s second annual meeting of stockholders held after the effectiveness of this
Certificate of Incorporation; and each director initially assigned to Class III shall serve for a term expiring at the Corporation’s
third annual meeting of stockholders held after the effectiveness of this Certificate of Incorporation; provided further, that the term
of each director shall continue until the election and qualification of his or her successor and be subject to his or her earlier death,
disqualification, resignation or removal.
D. Subject
to the rights granted to the holders of any one or more series of Preferred Stock then outstanding, any newly-created directorship on
the Board of Directors that results from an increase in the number of directors and any vacancy occurring on the Board of Directors (whether
by death, resignation, retirement, disqualification, removal or other cause) shall be filled only by a majority of the directors then
in office, even if less than a quorum, or by a sole remaining director (and not by the stockholders). Any director elected to fill a vacancy
or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and
until his or her successor shall be elected and qualified, or until his or her earlier death, resignation, retirement, disqualification
or removal.
E. Any
director or the entire Board of Directors may be removed from office at any time, but only for cause and only by the affirmative vote
of the holders of at least 66 2/3% in voting power of all the then outstanding shares of stock of the Corporation entitled to vote on
the election of such director, voting together as a single class.
F. Elections
of directors need not be by written ballot unless the Bylaws shall so provide.
G. Pursuant
to the Bylaws, the Board of Directors may establish one or more committees to which may be delegated any or all of the powers and duties
of the Board of Directors to the full extent permitted by law.
ARTICLE VII
LIMITATION OF DIRECTOR AND OFFICER LIABILITY
A. To
the fullest extent permitted by the DGCL as it now exists or may hereafter be amended, a director or officer of the Corporation shall
not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty owed to the Corporation
or its stockholders. If the DGCL is hereafter amended to authorize corporate action further eliminating or limiting the personal liability
of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest
extent permitted by the DGCL as so amended, automatically and without further action, upon the date of such amendment.
B. To
the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses
to) directors, officers and agents of the Corporation (and any other persons to which applicable law permits the Corporation to provide
indemnification and advancement of expenses) through provisions of the Bylaws, agreements with such persons, vote of stockholders or disinterested
directors, or otherwise. Any repeal or modification of this provision shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of such repeal or modification.
C. Neither
the amendment nor repeal of this Article VII, nor the adoption of any provision of this Certificate of Incorporation, nor, to the
fullest extent permitted by the DGCL, any modification of law shall eliminate, reduce or otherwise adversely affect any right or protection
of a current or former director or officer of the Corporation existing at the time of such amendment, repeal, adoption or modification.
ARTICLE VIII
CONSENT OF STOCKHOLDERS IN LIEU OF MEETING,
ANNUAL AND SPECIAL MEETINGS OF STOCKHOLDERS
A. Any
action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting
of such holders and may not be effected by any consent in lieu of a meeting of stockholders by such holders; provided, however,
that any action required or permitted to be taken by the holders of Preferred Stock, voting separately as a series or separately as a
class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly
so provided by the applicable certificate(s) of designation relating to such series of Preferred Stock.
B. Except
as otherwise required by law and subject to the rights of the holders of any series of Preferred Stock, special meetings of the stockholders
of the Corporation for any purpose or purposes may be called at any time only by or at the direction of the Chair of the Board of Directors
or by a resolution adopted by the affirmative vote of a majority of the total number of directors that the Company would have if there
were no vacancies on the Board of Directors (the “Whole Board”), but such special meetings may not be called by stockholders
or any other Person or Persons.
C. An
annual meeting of stockholders for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place, if any, on such date, and at such time as shall be fixed
exclusively by resolution adopted by the affirmative vote of the Whole Board or a duly authorized committee thereof.
ARTICLE IX
CERTAIN
STOCKHOLDER RELATIONSHIPS
A. In
recognition and anticipation that certain members of the Board who are not employees of the Corporation or a majority owned subsidiary
thereof (“Non-Employee Directors”) and their respective Affiliates or Affiliated Entities (each as defined below) may
now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation,
directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation,
directly or indirectly, may engage, the provisions of this Article IX are set forth to regulate and define the conduct of certain affairs
of the Corporation with respect to certain classes or categories of business opportunities as they may involve any of the Non-Employee
Directors or their respective Affiliates or Affiliated Entities and the powers, rights, duties and liabilities of the Corporation and
its directors, officers and stockholders in connection therewith.
B. No
Non-Employee Director or his or her Affiliates or Affiliated Entities (the Persons (as defined below) being referred to, collectively,
as “Identified Persons” and, individually, as an “Identified Person”) shall, to the fullest extent
permitted by law, have any duty to refrain from directly or indirectly (1) engaging in the same or similar business activities or lines
of business in which the Corporation or any of its Affiliates now engages or proposes to engage or (2) otherwise competing with the Corporation
or any of its Affiliates, and, to the fullest extent permitted by law, no Identified Person shall be liable to the Corporation or its
stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified
Person engages in any such activities. To the fullest extent permitted by law, the Corporation hereby renounces any interest or expectancy
in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Identified
Person and the Corporation or any of its Affiliates, except as provided in Section C of this Article IX. Subject to Section C of this
Article IX, in the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity which
may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Identified Person shall,
to the fullest extent permitted by law, have no duty to communicate or offer such transaction or other business opportunity to the Corporation
or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Corporation or its stockholders or to
any Affiliate of the Corporation for breach of any fiduciary duty as a stockholder or director of the Corporation solely by reason of
the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, offers or directs
such corporate opportunity to another Person, or does not communicate information regarding such corporate opportunity to the Corporation
or any Affiliate of the Corporation.
C. The
Corporation does not renounce its interest in any corporate opportunity offered to any Non-Employee Director if such opportunity is expressly
offered to such Person solely in his or her capacity as a director of the Corporation, and the provisions of Section B of this Article
IX shall not apply to any such corporate opportunity.
D. In
addition to and notwithstanding the foregoing provisions of this Article IX, a corporate opportunity shall not be deemed to be a potential
corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither financially or legally able,
nor contractually permitted, to undertake, (ii) from its nature, is not in the line of the Corporation’s business or is of no practical
advantage to the Corporation or (iii) is one in which the Corporation has no interest or reasonable expectancy.
E. Solely
for purposes of this Article IX, (i) “Affiliate” shall mean (1) in respect of a Non-Employee Director,
any Person that, directly or indirectly, is controlled by such Non-Employee Director (other than the Corporation and any entity
that is controlled by the Corporation) and (2) in respect of the Corporation, any Person that, directly or indirectly, is controlled
by the Corporation; (ii) “Affiliated Entity” shall mean (x) any Person of which a Non-Employee Director serves as an officer,
director, employee, agent or other representative (other than the Corporation and any entity that is controlled by the Corporation), (y)
any direct or indirect partner, stockholder, member, manager or other representative of such Person or (z) any Affiliate of any of the
foregoing; and (iii) “Person” shall mean any individual, corporation, general or limited partnership, limited liability company,
joint venture, trust, association or any other entity.
F. To
the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital
stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article IX.
ARTICLE X
MISCELLANEOUS
A. If
any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any
circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and
of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this
Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be
invalid, illegal or unenforceable) shall not, to the fullest extent permitted by law, in any way be affected or impaired thereby and (ii)
to the fullest extent permitted by law, the provisions of this Certificate of Incorporation (including, without limitation, each such
portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in
respect of their good faith service or for the benefit of the Corporation to the fullest extent permitted by law.
B.
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or
if such court does not have subject matter jurisdiction another state or federal court (as appropriate) located within the State of Delaware)
shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on
behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer
or other employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, creditors or other constituents,
(iii) any action asserting a claim against the Corporation or any current or former director or officer of the Corporation arising pursuant
to any provision of the DGCL or this Certificate of Incorporation or the Bylaws (as either may be amended and/or restated from time to
time) or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware or (iv) any action asserting a claim
governed by the internal affairs doctrine. Unless the Corporation consents in writing to the selection of an alternative forum, to the
fullest extent permitted by law, the federal district courts of the United States of America will be the exclusive forum for the resolution
of any complaint asserting a cause of action arising under the federal securities laws of the United States of America. Unless the Company
consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be, to
the fullest extent permitted by law, the sole and exclusive forum for any action asserting a claim arising under the Securities Act of
1933.
To the fullest extent permitted by law, any person
or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have
notice of and consented to the provisions of this Article X(B). * * *
This Certificate of Incorporation shall be effective
on [●], 2024 at [●] a.m. (Eastern Time).
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF,
USA Rare Earth, Inc. has caused this Certificate of Incorporation to be executed by its duly authorized officer on this day of [●],
2024.
| USA Rare Earth, Inc. |
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| Title: |
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Exhibit B – Form of Purchaser Bylaws upon
Domestication
USA Rare Earth, Inc.
BYLAWS
Table of Contents
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1. |
Time and Place of Meetings |
1 |
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2. |
Annual Meetings |
1 |
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3. |
Special Meetings |
1 |
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4. |
Notice of Meetings |
1 |
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5. |
Inspectors |
1 |
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6. |
Quorum |
2 |
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7. |
Voting; Proxies |
2 |
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8. |
Order of Business |
2 |
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9. |
Notice of Stockholder Proposals |
3 |
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10. |
Notice of Director Nominations |
5 |
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11. |
Additional Provisions Relating to the Notice of Stockholder Business and Director Nominations |
7 |
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12. |
Record Dates |
8 |
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13. |
Recesses and Adjournments |
9 |
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| DIRECTORS |
9 |
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14. |
Function |
9 |
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15. |
Number, Election and Terms |
9 |
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16. |
Vacancies and Newly Created Directorships |
9 |
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17. |
Removal |
9 |
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18. |
Resignation |
9 |
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19. |
Regular Meetings |
10 |
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20. |
Special Meetings |
10 |
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21. |
Quorum; Voting |
10 |
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22. |
Participation in Meetings by Remote Communications |
10 |
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23. |
Committees |
10 |
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24. |
Compensation |
11 |
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25. |
Rules |
11 |
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26. |
Chairman of the Board |
11 |
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27. |
Indemnification |
11 |
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| NOTICES |
14 |
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28. |
Generally |
14 |
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29. |
Waivers |
14 |
TABLE OF CONTENTS
(continued)
| OFFICERS |
15 |
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30. |
Generally |
15 |
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31. |
Compensation |
16 |
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32. |
Succession |
16 |
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33. |
Authority and Duties |
16 |
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| STOCK |
16 |
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34. |
Certificates |
16 |
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35. |
Lost, Stolen or Destroyed Certificates |
16 |
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| TRANSFERS |
17 |
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36. |
Transfers Generally |
17 |
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37. |
Lock-Up |
17 |
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| GENERAL |
20 |
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38. |
Fiscal Year |
20 |
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39. |
Reliance upon Books, Reports and Records |
20 |
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40. |
Amendments |
20 |
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41. |
Certain Defined Terms |
21 |
STOCKHOLDERS MEETINGS
1. Time and Place
of Meetings. All meetings of stockholders will be held at such time and place, within
or without the State of Delaware, as may be designated by the Board of Directors (the “Board”) of USA Rare
Earth, Inc. a Delaware corporation (the “Company”), from time to time in such manner as set forth in the Company’s
Certificate of Incorporation (the “Certificate of Incorporation”). Notwithstanding the foregoing, the Board
may, in its sole discretion, determine that a meeting of stockholders will not be held at any place, but may instead be held by means
of remote communications in accordance with Section 211(a)(2) of the General Corporation Law of the State of Delaware, as amended (the
“DGCL”), subject to such guidelines and procedures as the Board may adopt from time to time. The Board may
cancel or reschedule to an earlier or later date any previously scheduled annual or special meeting of stockholders.
2. Annual Meetings.
At each annual meeting of stockholders, the stockholders will elect the directors from the nominees for director, to succeed those directors
whose terms expire at such meeting and will transact such other business, in such case as may properly be brought before the meeting
in accordance with Sections 8, 9,
10 and 11.
3. Special Meetings.
(a) General.
A special meeting of stockholders may be called only by such persons and only in such manner as set forth in the Certificate of Incorporation,
in each case to transact only such business as is specified in the notice of such meeting.
(b) Meetings
of Preferred Stockholders. Notwithstanding the foregoing provisions of this Section 3,
special meetings of holders of any outstanding Preferred Stock may be called in the manner and for the purposes provided in the applicable
Preferred Stock Designation.
4. Notice of Meetings.
Notice of every meeting of stockholders, stating the place, if any, date and time thereof, the means of remote communications, if any,
by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, will be given, in a form permitted by Section 27
or by the DGCL, not less than ten nor more than 60 days before the date of the meeting to each stockholder of record entitled to
vote at such meeting, except as otherwise provided by law. When a meeting is recessed or adjourned to another place, date, or time, notice
need not be given of the recessed or adjourned meeting if the place, if any, date and time thereof, and the means of remote communications,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such recessed or adjourned meeting,
are (a) announced at the meeting at which the recess or adjournment is taken (b) displayed, during the time scheduled for the meeting,
on the same electronic network used to enable stockholders and proxy holders to participate in the meeting by means of remote communication
or (c) set forth in the notice of meeting; provided, however, that if the recess or adjournment is for more
than 30 days, or if after the recess or adjournment a new record date is fixed for the recessed or adjourned meeting, written notice
of the place, if any, date and time thereof, and the means of remote communications, if any, by which stockholders and proxy holders
may be deemed to be present in person and vote at such recessed or adjourned meeting, must be given in conformity herewith.
5. Inspectors.
The Board will, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report
thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the presiding officer of the meeting will appoint one or more inspectors to
act at the meeting.
6. Quorum.
Except as otherwise provided by law or in a Preferred Stock Designation, the holders of a majority in voting power of the shares of stock
issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, will constitute a quorum at a
meeting of stockholders for the transaction of business thereat. A quorum, once established, will not be broken by the subsequent withdrawal
of enough votes to leave less than a quorum. If, however, such a quorum shall not be present or represented at any meeting of the stockholders,
the presiding officer of the meeting shall have the power to recess or adjourn the meeting from time to time, in the manner provided
in Section 13, until a quorum is present or represented.
7. Voting; Proxies.
(a) General.
Except as otherwise provided by law, by the Certificate of Incorporation, or in a Preferred Stock Designation, each stockholder will be
entitled at every meeting of the stockholders to one vote for each share of stock having voting power standing in the name of such stockholder
on the books of the Company on the record date for the meeting and such votes may be cast either in person or by proxy. Every proxy must
be authorized in a manner permitted by Section 212 of the DGCL (or any successor provision) and may be documented, signed and delivered
in accordance with Section 116 of the DGCL (or any successor provision) provided that such authorization shall set forth, or be delivered
with, information enabling the Company to reasonably determine the identity of the stockholder granting such authorization.
(b) Vote
Required for Stockholder Action. When a quorum is present at any meeting of stockholders, the affirmative vote of a majority of the
votes properly cast on the matter (excluding any abstentions or broker non-votes) will be the act of the stockholders with respect to
all matters other than the election of directors (who will be elected by a plurality of all votes properly cast), except as otherwise
provided in these Bylaws, the Certificate of Incorporation, a Preferred Stock Designation, the rules or regulations of any stock exchange
applicable to the Corporation, or by law.
8. Order of Business.
The Chairman, or an officer of the Company designated from time to time by a majority of the total number of directors that the Company
would have if there were no vacancies on the Board of Directors (the “Whole Board”), will call meetings
of stockholders to order and will act as presiding officer thereof. Unless otherwise determined by the Board prior to the meeting, the
presiding officer of any meeting of stockholders will also determine the order of business and have the authority in his or her sole
discretion to determine the rules of procedure and regulate the conduct of the meeting, including without limitation by: (a) imposing
restrictions on the persons (other than stockholders of the Company or their duly appointed proxy holders) that may attend the meeting;
(b) ascertaining whether any stockholder or his or her proxy holder may be excluded from the meeting based upon any determination by
the presiding officer, in his or her sole discretion, that any such person has disrupted or is likely to disrupt the proceedings thereat;
(c) determining the circumstances in which any person may make a statement or ask questions at the meeting; (d) ruling on all procedural
questions that may arise during or in connection with the meeting; (e) determining whether any nomination or business proposed to be
brought before the meeting has been properly brought before the meeting; and (f) determining the time or times at which the polls for
voting at the meeting will be opened and closed.
9. Notice of Stockholder
Proposals.
(a) Business
to Be Conducted at Annual Meeting. At an annual meeting of stockholders, only such business may be conducted as has been properly
brought before the meeting. To be properly brought before an annual meeting, business (other than the nomination of a person for election
as a director, which is governed by Section 10,
and, to the extent applicable, Section 11),
must be (i) brought before the meeting by or at the direction of the Board or (ii) otherwise properly brought before the meeting by a
stockholder who (A) has complied with all applicable requirements of this Section 9
and Section 11 in relation
to such business, (B) was a stockholder of record of the Company at the time of giving the notice required by Section 11(a)
and is a stockholder of record of the Company at the time of the annual meeting, and (C) is entitled to vote at the annual meeting. For
the avoidance of doubt, the foregoing clause (ii) will be the exclusive means for a stockholder to submit business before an annual meeting
of stockholders (other than proposals properly made in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended
(such act, and the rules and regulations promulgated thereunder, the “Exchange Act”) and included in the notice
of meeting given by or at the direction of the Board).
(b) Required
Form for Stockholder Proposals. To be in proper form, regardless of whether the subject matter is already the subject of any notice
to stockholders from the Board, a stockholder’s notice to the Secretary must set forth in writing, on the form provided to the stockholder
upon written request to the Secretary and verification that the requesting party is a stockholder or is acting on behalf of a stockholder,
including the following information, which must be updated and supplemented, if necessary, so that the information provided or required
to be provided will be true and correct on the record date of the annual meeting and as of such date that is ten business days prior to
the annual meeting or any adjournment or postponement thereof; which update shall be delivered to the Secretary no later than five business
days after the record date for the Annual Meeting and not later than eight business days prior to the date of the Annual Meeting.
(i) Information
Regarding the Proposing Person. As to each Proposing Person (as such term is defined in Section 11(d)(ii)):
(A) the
name and address of such Proposing Person, as they appear on the Company’s stock transfer book;
(B) the
class, series and number of shares of the Company directly or indirectly beneficially owned or held of record by such Proposing Person
(including any shares of any class or series of the Company as to which such Proposing Person has a right to acquire beneficial ownership,
whether such right is exercisable immediately or only after the passage of time);
(C) a
representation (1) that the stockholder giving the notice is a holder of record of stock of the Company entitled to vote at the annual
meeting and intends to appear at the annual meeting to bring such business before the annual meeting and (2) as to whether any Proposing
Person intends to deliver a proxy statement and form of proxy to holders of at least the percentage of shares of the Company entitled
to vote and required to approve the proposal and, if so, identifying such Proposing Person;
(D) a
description of any (1) option, warrant, convertible security, stock appreciation right or similar right or interest (including any derivative
securities, as defined under Rule 16a-1 under the Exchange Act or other synthetic arrangement having characteristics of a long position),
assuming for purposes of these Bylaws presently exercisable, with an exercise or conversion privilege or a settlement or payment mechanism
at a price related to any class or series of securities of the Company or with a value derived in whole or in part from the value of any
class or series of securities of the Company, whether or not such instrument or right is subject to settlement in whole or in part in
the underlying class or series of securities of the Company or otherwise, directly or indirectly held of record or owned beneficially
by such Proposing Person and whether or not such Proposing Person may have entered into transactions that hedge or mitigate the economic
effects of such security or instrument and (2) each other direct or indirect right or interest that may enable such Proposing Person to
profit or share in any profit derived from, or to manage the risk or benefit from, any increase or decrease in the value of the Company’s
securities, in each case regardless of whether (x) such right or interest conveys any voting rights in such security to such Proposing
Person, (y) such right or interest is required to be, or is capable of being, settled through delivery of such security, or (z) such Proposing
Person may have entered into other transactions that hedge the economic effect of any such right or interest (any such right or interest
referred to in this clause (D) being a “Derivative Interest”);
(E) any
proxy, contract, agreement, arrangement, understanding or relationship pursuant to which the Proposing Person has a right to vote any
shares of the Company or which has the effect of increasing or decreasing the voting power of such Proposing Person;
(F) any
contract, agreement, arrangement, understanding or relationship including any repurchase or similar so called “stock borrowing”
agreement or arrangement, the purpose or effect of which is to mitigate loss, reduce economic risk or increase or decrease voting power
with respect to any capital stock of the Company or which provides any party, directly or indirectly, the opportunity to profit from any
decrease in the price or value of the capital stock of the Company;
(G) any
material pending or threatened legal proceeding involving the Company, any affiliate of the Company or any of their respective directors
or officers, to which such Proposing Person or its affiliates is a party;
(H) any
rights directly or indirectly held of record or beneficially by the Proposing Person to dividends on the shares of the Company that are
separated or separable from the underlying shares of the Company;
(I) any
equity interests, including any convertible, derivative or short interests, in any principal competitor of the Company;
(J) any
performance-related fees (other than an asset-based fee) to which the Proposing Person or any affiliate or immediate family member of
the Proposing Person may be entitled as a result of any increase or decrease in the value of shares of the Company or Derivative Interests;
(K) a
representation whether the stockholder, the beneficial owner, if any, on whose behalf the nomination or other business proposal is being
made, any control person, or any other participant (as defined in Item 4 of Schedule 14A under the Exchange Act) will engage in a solicitation
with respect to such nomination or other business proposal and, if so, the name of each participant in such solicitation; and a statement:
(1) confirming whether, the stockholder, beneficial owner, or any control person intends, or is part of a group that (x) in the case of
a nomination, intends to solicit proxies or votes in support of such director nominees or nomination in accordance with Rule 14a-19 under
the Exchange Act, including but not limited to, delivering a proxy statement and form of proxy and soliciting at least the percentage
of the voting power of all of the shares of the stock of the Company required under applicable law to elect the nominee, and (y) in the
case of a business proposal, intends to deliver a proxy statement and form of proxy and solicit at least the percentage of voting power
of all of the shares of stock of the Company required under applicable law to approve the proposal; and (2) whether or not any such stockholder,
beneficial owner, or any control person intends to otherwise solicit proxies from stockholders in support of such nomination or other
business proposal; and
(L) any
other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required
pursuant to Section 14(a) of the Exchange Act to be made in connection with a general solicitation of proxies or consents by such
Proposing Person in support of the business proposed to be brought before the meeting.
(ii) Information
Regarding the Proposal: As to each item of business that the stockholder giving the notice proposes to bring before the annual meeting:
(A) a
description in reasonable detail of the business desired to be brought before the annual meeting and the reasons why such stockholder
or any other Proposing Person believes that the taking of the action or actions proposed to be taken would be in the best interests of
the Company and its stockholders;
(B) a
description in reasonable detail of any material interest of any Proposing Person in such business and a description in reasonable detail
of all agreements, arrangements and understandings among the Proposing Persons or between any Proposing Person and any other person or
entity (including their names) in connection with the proposal; and
(C) the
text of the proposal or business (including the text of any resolutions proposed for consideration).
(c) No
Right to Have Proposal Included. A stockholder is not entitled to have its proposal included in the Company’s proxy statement
and form of proxy solely as a result of such stockholder’s compliance with the foregoing provisions of this Section 9.
(d) Requirement
to Attend Annual Meeting. If a stockholder does not appear at the annual meeting to present its proposal, such proposal will be disregarded
(notwithstanding that proxies in respect of such proposal may have been solicited, obtained or delivered).
10. Notice of Director
Nominations.
(a) Nomination
of Directors. Subject to the rights, if any, of any series of Preferred Stock to nominate or elect directors under circumstances specified
in a Preferred Stock Designation, only persons who are nominated in accordance with the procedures set forth in this Section 10
will be eligible to serve as directors. Nominations of persons for election as directors of the Company may be made only at an annual
meeting of stockholders and only (i) by or at the direction of the Board or (ii) by a stockholder who (A) has complied with all applicable
requirements of this Section 10
and Section 11 in relation
to such nomination, (B) was a stockholder of record of the Company at the time of giving the notice required by Section 11(a)
and is a stockholder of record of the Company at the time of the annual meeting, (C) is entitled to vote at the annual meeting and (D)
subject to Section 11,
has nominated a number of nominees that does not exceed the number of directors that will be elected at such meeting.
(b) Required
Form for Director Nominations. To be in proper form, a stockholder’s notice to the Secretary must set forth in writing, substantially
in the form provided to the stockholder upon written request to the Secretary, which form shall be provided only upon the receipt of evidence
reasonably satisfactory to the Secretary verifying that the requesting party is a stockholder or is acting on behalf of a stockholder:
(i) Information
Regarding the Nominating Person. As to each Nominating Person (as such term is defined in Section 11(d)(iii)),
the information set forth in Section 9(b)(i)
(except that for purposes of this Section 10,
the term “Nominating Person” will be substituted for the term “Proposing Person” in
all places where it appears in Section 9(b)(i)
and any reference to “business” or “proposal” therein will be deemed to be a reference
to the “nomination” contemplated by this Section 10).
(ii) Information
Regarding the Nominee: As to each person whom the stockholder giving notice proposes to nominate for election as a director:
(A) all
information with respect to such proposed nominee that would be required to be set forth in a stockholder’s notice pursuant to Section 9(b)(i)
if such proposed nominee were a Nominating Person;
(B) all
information relating to such proposed nominee that would be required to be disclosed in a proxy statement or other filing required pursuant
to Section 14(a) under the Exchange Act to be made in connection with a general solicitation of proxies for an election of directors
in a contested election (including such proposed nominee’s written consent to be named in the proxy statement as a nominee and to
serve as a director if elected);
(C) a
reasonably detailed description of all direct and indirect compensation and other material monetary agreements, arrangements or understandings
during the past three years, any other material relationships, between or among such Nominating Person and its affiliates and associates,
or others acting in concert therewith, on the one hand, and each proposed nominee and his or her affiliates, associates or others acting
in concert therewith, on the other hand, including all information that would be required to be disclosed pursuant to Items 403 and 404
under Regulation S-K if the stockholder giving the notice or any other Nominating Person were the “registrant” for purposes
of such rule and the proposed nominee were a director or executive officer of such registrant;
(D) a
completed questionnaire (in the form provided by the Secretary upon written request) with respect to the identity, background and qualification
of the proposed nominee and the background of any other person or entity on whose behalf the nomination is being made; and
(E) a
written representation and agreement (in the form provided by the Secretary upon written request) that the proposed nominee (1) is qualified
and if elected intends to serve as a director of the Company for the entire term for which such proposed nominee is standing for election,
(2) is not and will not become a party to (x) any agreement, arrangement or understanding with, and has not given any commitment
or assurance to, any person or entity as to how the proposed nominee, if elected as a director of the Company, will act or vote on any
issue or question (a “Voting Commitment”) that has not been disclosed to the Company or (y) any Voting Commitment
that could limit or interfere with the proposed nominee’s ability to comply, if elected as a director of the Company, with the proposed
nominee’s fiduciary duties under applicable law, (3) is not and will not become a party to any agreement, arrangement or understanding
with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification
in connection with service or action as a director that has not been disclosed therein, and (4) has read and, if elected as a director
of the Company, the proposed nominee would be in compliance and will comply, with all applicable publicly disclosed corporate governance,
ethics, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Company.
The Company may require any proposed nominee to
furnish such other information as may be reasonably required by the Company to determine the qualifications and eligibility of such proposed
nominee to serve as a director.
(c) No
Right to Have Nominees Included. A stockholder is not entitled to have its nominees included in the Company’s proxy statement
solely as a result of such stockholder’s compliance with the foregoing provisions of this Section 10.
(d) Requirement
to Attend Annual Meeting. If a stockholder does not appear at the annual meeting to present its nomination, such nomination will be
disregarded (notwithstanding that proxies in respect of such nomination may have been solicited, obtained or delivered).
11. Additional Provisions
Relating to the Notice of Stockholder Business and Director Nominations.
(a) Timely
Notice. To be timely, a stockholder’s notice required by Section 9(a)
or Section 10(a) must
be delivered to or mailed and received by the Secretary at the principal executive offices of the Company not less than 120 nor more than
150 days prior to the first anniversary of the date on which the Company’s definitive proxy statement was first sent to stockholders
in connection with the preceding year’s annual meeting of stockholders (which date shall, for purposes of the Corporation’s
annual meeting of stockholders in the year of the closing of the transactions contemplated in the Business Combination Agreement be deemed
to have occurred on [●], 202[●]); provided, however, that if the date of the annual meeting is
scheduled for a date more than 30 days prior to or more than 60 days after the anniversary of the preceding year’s annual meeting,
notice by the stockholder to be timely must be so delivered not later than the close of business on the later of the 120th day prior to
such annual meeting and the 10th day following the day on which public disclosure of the date of such meeting is first made. In no event
will a recess or adjournment of an annual meeting (or any announcement of any such recess or adjournment) commence a new time period (or
extend any time period) for the giving of a stockholder’s notice as described above. Notwithstanding the foregoing, in the event
the number of directors to be elected to the Board at the annual meeting is increased by the Board, and there is no public announcement
by the Company naming the nominees for the additional directors at least 100 days prior to the first anniversary of the date on which
the Company held the preceding year’s annual meeting of stockholders, a stockholder’s notice pursuant to Section 10(a)
will be considered timely, but only with respect to nominees for the additional directorships, if it is delivered to or mailed and received
by the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the
day on which such public announcement is first made by the Company.
(b) Updating
Information in Notice. A stockholder providing notice of business proposed to be brought before an annual meeting pursuant to Section 9
or notice of any nomination to be made at an annual meeting pursuant to Section 10
must further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice
pursuant to Section 9
or Section 10, as applicable,
is true and correct as of the record date for notice of the meeting and as of the date that is ten days prior to the meeting or any recess,
adjournment or postponement thereof. Any such update and supplement must be delivered to, or mailed and received by, the Secretary at
the principal executive offices of the Company, as promptly as practicable.
(c) Determinations
of Form, Effect of Noncompliance, Etc.
(i) The
presiding officer of any annual meeting will, if the facts warrant, determine that a proposal was not made in accordance with the procedures
prescribed by Section 9 and this
Section 11 or that a nomination
was not made in accordance with the procedures prescribed by Section 10
and this Section 11, and if he
or she should so determine, he or she will so declare to the meeting and the defective proposal or nomination, as applicable, will be
disregarded. Notwithstanding anything in these Bylaws to the contrary: (i) no nominations shall be made or business shall be conducted
at any annual meeting or special meeting except in accordance with the procedures set forth in Sections 9,
10 and 11,
and (ii) unless otherwise required by law, if a Proposing Person intending to propose business or a Nominating Person intending to make
nominations at an annual meeting or special meeting pursuant to Sections 9,
10 and 11,
as applicable, does not provide the information required under Sections 9,
10 and 11
to the Company in accordance with the applicable timing requirements set forth in these Bylaws, or the Proposing Person or Nominating
Person (or a qualified representative thereof) does not appear at the meeting to present the proposed business or nominations, such business
or nominations shall not be considered, notwithstanding that proxies in respect of such business or nominations may have been received
by the Company.
(ii) Notwithstanding
the provisions of Section 9,
10 and 11
and unless otherwise required by law, if any Proposing Person (A) provides notice pursuant to Rule 14a-19(b) under the Exchange Act with
respect to any nomination or business proposal and (ii) subsequently fails to comply with the requirements of Rule 14a-19 under the Exchange
Act (or fails to timely provide reasonable evidence sufficient to satisfy the Company that such Proposing Person has met the requirements
of Rule 14a-19(a)(3) under the Exchange Act), then each applicable nomination or business proposal shall be disregarded, notwithstanding
that the applicable nominee is included as a nominee in the Company’s proxy statement, notice of meeting or other proxy materials
for any annual meeting (or any supplement thereto) and notwithstanding that proxies or votes in respect of the election of such proposed
nominees may have been received by the Company (which proxies and votes shall be disregarded).
(d) Certain
Definitions.
(i) For
purposes of Section 9 and Section 10
and this Section 11, “public
disclosure” means disclosure in a press release reported by the Dow Jones News Service, Bloomberg, Associated Press or comparable
national news service or in a document filed by the Company with the Securities and Exchange Commission pursuant to Exchange Act or furnished
by the Company to stockholders.
(ii) For
purposes of Section 9 and this
Section 11, “Proposing
Person” means (A) the stockholder providing the notice of business proposed to be brought before an annual meeting, (B)
the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be brought before the
annual meeting is given, and (C) any Affiliate or Associate (each within the meaning of Rule 12b-2 under the Exchange Act) of such stockholder
or beneficial owner.
(iii) For
purposes of Section 10 and this
Section 11, “Nominating
Person” means (A) the stockholder providing the notice of the nomination proposed made to be at an annual meeting, (B) the
beneficial owner or beneficial owners, if different, on whose behalf the notice of nomination proposed to be made at the annual meeting
is given, and (C) any Affiliate or Associate (each within the meaning of Rule 12b-2 under the Exchange Act) of such stockholder or beneficial
owner.
12. Record Dates.
(a) Voting
Record Dates. In order that the Company may determine the stockholders entitled to notice of any meeting of stockholders, the Board
may fix a record date, which will not precede the date upon which the Board resolution fixing the same is adopted and will not be more
than 60 nor less than 10 days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for
determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that
a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board,
the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders will be at the close of business
on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders
will apply to any recess or adjournment of the meeting; provided, however, that the Board may fix a new record
date for the determination of stockholders entitled to vote at the recessed or adjourned meeting, and in such case shall also fix as the
record date for stockholders entitled to such notice of such recessed or adjourned meeting the same or an earlier date as that fixed for
determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 12(a)
at the recessed or adjourned meeting.
(b) Payment
Record Dates. In order that the Company may determine the stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board may fix a record date, which record date will not be more than 60 days prior
to such action. If no record date is fixed, the record date for determining stockholders for any such purpose will be at the close of
business on the day on which the Board adopts the resolution relating thereto.
(c) Identity
of Registered Holder. The Company will be entitled to treat the person in whose name any share of its stock is registered as the owner
thereof for all purposes, and will not be bound to recognize any equitable or other claim to, or interest in, such share on the part of
any other person, whether or not the Company has notice thereof, except as expressly provided by applicable law.
13. Recesses and
Adjournments. A meeting of stockholders may be recessed or adjourned from time to time
by the presiding officer of the meeting. Upon any recessed or adjourned meeting being reconvened, any business may be transacted which
properly could have been transacted in the absence of such recess or adjournment.
DIRECTORS
14. Function.
The business and affairs of the Company will be managed under the direction of the Board.
15. Number, Election
and Terms. Subject to the rights, if any, of any series of Preferred Stock to elect additional
directors under circumstances specified in a Preferred Stock Designation, and to the minimum and maximum number of authorized directors
provided in the Certificate of Incorporation, the authorized number of directors may be fixed from time to time only by a resolution
adopted by a majority of the Whole Board. The directors, other than those who may be elected by the holders of any series of the Preferred
Stock, will be classified with respect to the time for which they severally hold office in accordance with the provisions of the Certificate
of Incorporation.
16. Vacancies and
Newly Created Directorships. Subject to the rights, if any, of the holders of any series
of Preferred Stock to elect additional directors under circumstances specified in a Preferred Stock Designation, newly created directorships
resulting from any increase in the authorized number of directors and any vacancies on the Board resulting from death, resignation, disqualification,
removal or other cause may be filled only by the affirmative vote of a majority of the remaining directors then in office, even though
less than a quorum of the Board, or by a sole remaining director. Any director elected in accordance with the preceding sentence will
hold office for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred
and until such director’s successor is elected and qualified. No decrease in the authorized number of directors will shorten the
term of any incumbent director.
17. Removal.
Directors may be removed from office only in the manner provided in the Certificate of Incorporation and applicable law.
18. Resignation.
Any director may resign at any time upon notice given in writing or by electronic transmission to the Chairman or the Secretary. Any
resignation is effective when the resignation is delivered to the Company unless the resignation specifies a later effective date or
an effective date that is contingent upon the occurrence or non-occurrence of one or more specified events.
19. Regular Meetings.
Regular meetings of the Board may be held immediately after the annual meeting of the stockholders and at such other time and place either
within or without the State of Delaware as may from time to time be determined by the Board. Notice of regular meetings of the Board
need not be given.
20. Special Meetings.
Special meetings of the Board may be called by the Chairman on one day’s notice to each director by whom such notice is not waived,
given in a manner permitted by Section 28 or by the DGCL, and will be called by the Chairman, in like manner and on like
notice, upon the request of a majority of the Whole Board. The time and place of any such special meeting shall be as specified in the
notice of such meeting.
21. Quorum; Voting.
At all meetings of the Board, a majority of the Whole Board will constitute a quorum for the transaction of business. Except for action
to be taken by committees of the Board as provided in Section 23, and except for
actions required by these Bylaws or the Certificate of Incorporation to be taken by a majority of the Whole Board, the act of a majority
of the directors present at any meeting at which there is a quorum will be the act of the Board. If a quorum is not present at any meeting
of the Board, the directors present thereat may adjourn the meeting from time to time to another place, time, or date, without notice
other than announcement at the meeting, until a quorum is present. Except as otherwise provided in these Bylaws or in the Certificate
of Incorporation or as required by applicable law, the vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. Unless otherwise restricted by the Certificate of Incorporation, these Bylaws or
applicable law, any action required to be taken at a meeting of the Board or any committee thereof, may be taken without a meeting if
all directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission and any consent
may be documented, signed and delivered in any manner permitted by Section 116 of the DGCL. After an action is taken by unanimous
written consent, such consent shall be filed with the minutes of proceedings for the Board or committee in accordance with applicable
law.
22. Participation
in Meetings by Remote Communications. Members of the Board or any committee designated
by the Board may participate in a meeting of the Board or any such committee, as the case may be, by means of conference telephone or
other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation
in a meeting will constitute presence in person at the meeting.
23. Committees.
The Board may designate one or more committees, each committee to consist of one or more of the directors. The Board may designate one
or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board,
or in these Bylaws, will have and may exercise all the powers and authority of the Board in the management of the business and affairs
of the Company, and may authorize the seal of the Company to be affixed to all papers which may require it; but no such committee will
have the power or authority in reference to the following matters: (a) approving or adopting, or recommending to the stockholders, any
action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for
approval or (b) making, adopting, amending or repealing any provision of these Bylaws. Unless the Board provides otherwise, each committee
designated by the Board may make, alter and repeal rules and procedures for the conduct of its business. In the absence of such rules
and procedures, each committee shall conduct its business in the same manner as the Board conducts its business. Any resolution of the
Board establishing or directing any committee of the Board or establishing or amending the charter of any such committee may establish
requirements or procedures relating to the governance and/or operation of such committee that are different from, or in addition to,
those set forth in these Bylaws and, to the extent that there is any inconsistency between these Bylaws and any such resolution or charter,
the terms of such resolution or charter shall be controlling.
24. Compensation.
The Board may establish the compensation of directors, including without limitation compensation for membership on the Board and on committees
of the Board, attendance at meetings of the Board or committees of the Board, and for other services provided to the Company or at the
request of the Board.
25. Rules.
The Board may adopt rules and regulations for the conduct of meetings and the oversight of the management of the affairs of the Company.
26. Chairman of the
Board. The Board, by a majority vote of the Whole Board, shall elect a Chairman from among
the members of the Board. The Chairman shall not be considered an officer of the Company in his or her capacity as such. The Chairman
may be removed from that capacity by a majority vote of the Whole Board. The Chairman shall preside at meetings of the Board and of the
stockholders of the Company and exercise and perform such other powers and duties as may from time to time be assigned to him or her
by the Board or as may be prescribed by these Bylaws. In the absence of the Chairman, such other director of the Company designated by
the Chairman or by the Board shall act as chairman of any such meeting. The Chairman or the Board may appoint a Vice Chairman of the
Board to exercise and perform such other powers and duties as may from time to time be assigned to him or her by the Chairman or by the
Board.
27. Indemnification.
(a) Right
to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”),
by reason of the fact that he or she is or was a director or an officer of the Company or, while serving as a director or officer of the
Company, is or was serving at the request of the Company as a director, officer, employee, agent or trustee of another corporation or
of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an
“indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director,
officer, employee, agent or trustee or in any other capacity while serving as a director, officer, employee, agent or trustee, shall be
indemnified and held harmless by the Company to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, if permitted, only to the extent that such amendment permits the Company to provide broader indemnification
rights than such law permitted the Company to provide prior to such amendment), against all expense, liability and loss (including attorneys’
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) actually and reasonably incurred or suffered by
such indemnitee in connection therewith; provided, however, that, except with respect to proceedings to enforce rights to indemnification
or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Company shall indemnify any
such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board. Any reference to an officer of the Company in this Section 27
shall be deemed to refer exclusively to the Chief Executive Officer, President, Chief Financial Officer, Chief Legal Officer and Secretary
of the Company, as applicable, appointed pursuant to these Bylaws, and to any Vice President, Assistant Secretary, Assistant Treasurer
or other officer of the Company appointed by the Board pursuant to these Bylaws, including, without limitation, any “executive officer”
for purposes of Rule 3b-7 of the Exchange Act or “officer” for purposes of Section 16 of the
Exchange Act, and any reference to an officer of any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise shall be deemed to refer exclusively to an officer appointed by the board of directors or equivalent governing body
of such other entity pursuant to the certificate of incorporation and bylaws or equivalent organizational documents of such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise. The fact that any person who is or was an employee of the
Company or an employee of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, but not
an officer thereof as described in the preceding sentence, has been given or has used the title of “Vice President” or any
other title that could be construed to suggest or imply that such person is or may be such an officer of the Company or of such other
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall not result in such person being constituted
as, or being deemed to be, such an officer of the Company or of such other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise for purposes of this Section 27.
(b) Right
to Advancement of Expenses. In addition to the right to indemnification conferred in Section 27(a),
an indemnitee shall also have the right to be paid by the Company, to the fullest extent not prohibited by applicable law, the expenses
(including attorney’s fees) incurred by indemnitee in appearing at, participating in or defending any such proceeding in advance
of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement
of expenses under this Section 27
(which shall be governed by Section 27(c)
(hereinafter an “advancement of expenses”)); provided, however, that, if the DGCL requires or in the
case of an advancement of expenses made in a proceeding brought to establish or enforce a right to indemnification or advancement of expenses,
an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Company (and not in any other
capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall
be made solely upon delivery to the Company of an undertaking (hereinafter an “undertaking”), by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there
is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be
indemnified under Section 27(a)
and Section 27(b) or otherwise.
(c) Right
of Indemnitee to Bring Suit. If a claim under Section 27(a)
or Section 27(b) is not
paid in full by the Company within (a) sixty (60) days after a written claim for indemnification has been received by the Company or (b)
thirty (30) days after a claim for an advancement of expenses has been received by the Company, the indemnitee may at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim or to obtain advancement of expenses, as applicable. To the fullest
extent permitted by law, if successful in whole or in part in any such suit, or in a suit brought by the Company to recover an advancement
of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending
such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or
brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee
is not entitled to be indemnified, or to such advancement of expenses, under this Section 27
or otherwise shall be on the Company.
(d) Indemnification
Not Exclusive.
(i) The
provision of indemnification to or the advancement of expenses and costs to any indemnitee under this Section 27,
or the entitlement of any indemnitee to indemnification or advancement of expenses and costs under this Section 27,
shall not limit or restrict in any way the power of the Company to indemnify or advance expenses and costs to such indemnitee in any other
way permitted by law or be deemed exclusive of, or invalidate, any right to which any indemnitee seeking indemnification or advancement
of expenses and costs may be entitled under any law, agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such indemnitee’s capacity as an officer, director, employee or agent of the Company and as to action in any other
capacity.
(ii) Given
that certain jointly indemnifiable claims (as defined below) may arise due to the service of the indemnitee as a director and/or officer
of the Company at the request of the indemnitee-related entities (as defined below), the Company shall be fully and primarily responsible
for the payment to the indemnitee in respect of indemnification or advancement of all expenses, judgments, penalties, fines and amounts
paid in settlement to the extent legally permitted and as required by the terms of the Certificate of Incorporation or these Bylaws of
the Company (or any other agreement between the Company and such persons, as applicable) in connection with any such jointly indemnifiable
claims, pursuant to and in accordance with the terms of this Section 27,
irrespective of any right of recovery the indemnitee may have from the indemnitee-related entities. Any obligation on the part of any
indemnitee-related entities to indemnify or advance expenses to any indemnitee shall be secondary to the Company’s obligation and
shall be reduced by any amount that the indemnitee may collect as indemnification or advancement from the Company. The Company irrevocably
waives, relinquishes and releases the indemnitee-related entities from any and all claims it may have against the indemnitee-related entities
for contribution, subrogation or any other recovery of any kind in respect thereof. Under no circumstance shall the Company be entitled
to any right of subrogation or contribution by the indemnitee-related entities and no right of advancement or recovery the indemnitee
may have from the indemnitee-related entities shall reduce or otherwise alter the rights of the indemnitee or the obligations of the Company
hereunder. In the event that any of the indemnitee-related entities shall make any payment to the indemnitee in respect of indemnification
or advancement of expenses with respect to any jointly indemnifiable claim, the indemnitee-related entity making such payment shall be
subrogated to the extent of such payment to all of the rights of recovery of the indemnitee against the Company, and the indemnitee shall
execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution
of such documents as may be necessary to enable the indemnitee-related entities effectively to bring suit to enforce such rights. Each
of the indemnitee-related entities shall be third-party beneficiaries with respect to this Section 27(d)(ii),
entitled to enforce this Section 27(d)(ii).
For purposes of this Section 27(d)(ii),
the following terms shall have the following meanings:
(A) The
term “indemnitee-related entities” means any corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise (other than the Company or any other corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other enterprise for which the indemnitee has agreed, on behalf of the Company or at the
Company’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein)
from whom an indemnitee may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the
Company may also have an indemnification or advancement obligation (other than as a result of obligations under an insurance policy).
(B) The
term “jointly indemnifiable claims” shall be broadly construed and shall include, without limitation, any action, suit or
proceeding for which the indemnitee shall be entitled to indemnification or advancement of expenses from both the indemnitee-related entities
and the Company pursuant to Delaware law, any agreement or certificate of incorporation, bylaws, partnership agreement, operating agreement,
certificate of formation, certificate of limited partnership or comparable document or agreement.
(e) Corporate
Obligations; Reliance. The rights granted pursuant to the provisions of this Section 27
shall vest at the time a person becomes a director or officer of the Company and shall be deemed to create a binding contractual obligation
on the part of the Company to the persons who from time to time are elected as officers or directors of the Company, and such persons
in acting in their capacities as officers or directors of the Company or any subsidiary shall be entitled to rely on such provisions of
this Section 27 without
giving notice thereof to the Company. Such rights shall continue as to an indemnitee who has ceased to be a director or officer and shall
inure to the benefit of the indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this Section 27
that adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit, eliminate, or impair
any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took
place prior to such amendment or repeal.
(f) Insurance.
The Company may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether
or not the Company would have the power to indemnify such person against such expense, liability or loss under the DGCL.
(g) Indemnification
of Employees and Agents of the Company and Others. The Company may, to the extent authorized from time to time by the Board, grant
rights to indemnification and to the advancement of expenses to any employee or agent of the Company and to any person (in addition to
an indemnitee) serving at the request of the Company as an officer, director, employee or agent of any other enterprise to the fullest
extent of the provisions of this Section 27
with respect to the indemnification and advancement of expenses of indemnitees hereunder.
NOTICES
28. Generally.
(a) Form
of Notices. Except as otherwise provided by law, these Bylaws, or the Certificate of Incorporation, whenever by law or under the provisions
of the Certificate of Incorporation or these Bylaws notice is required to be given to any director or stockholder, it will not be construed
to require personal notice, but such notice may be given in writing, by mail or courier service or, to the extent permitted by the DGCL,
by electronic transmission, addressed to such director or stockholder. Any notice sent to stockholders by mail or courier service shall
be sent to the address of such stockholder as it appears on the records of the Company, with postage thereon prepaid, and such notice
will be deemed to be given at the time when the same is deposited in the United States mail or with the courier service. Notices sent
by electronic transmission shall be deemed effective as set forth in Section 232 of the DGCL. For purposes of this Section 28,
“electronic transmission” means any form of communication, not directly involving the physical transmission
of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced
in paper form by such a recipient through an automated process.
(b) Notices
to Directors. Notices to directors may be given by mail or courier service, telephone, electronic transmission or as otherwise may
be permitted by these Bylaws.
29. Waivers.
Whenever any notice is required to be given by law or under the provisions of the Certificate of Incorporation or these Bylaws, a waiver
thereof in writing, signed by the person entitled to such notice, or a waiver by electronic transmission by the person entitled to such
notice, whether before or after the time of the event for which notice is to be given, will be deemed equivalent to such notice. Attendance
of a person at a meeting will constitute a waiver of notice of such meeting, except when the person attends a meeting for the express
purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or
convened.
OFFICERS
30. Generally.
(a) The
officers of the Company will be elected by the Board and will consist of officers with titles and duties as determined by the Board, but
in any case shall include a Chief Executive Officer (which may be the President), a Treasurer and a Secretary, all of whom shall be elected
at the annual meeting of the Board. The Board may also choose one or more Vice Presidents (who may be given particular designations with
respect to authority, function, or seniority), one or more Assistant Secretaries, one or more Assistant Treasurers and such other officers
as the Board may from time to time determine. Notwithstanding the foregoing, the Board may authorize the Chief Executive Officer to appoint
any person to any office other than the Secretary or Treasurer. Any number of offices may be held by the same person. Any of the offices
may be left vacant from time to time as the Board may determine. In the case of the absence or disability of any officer of the Company
or for any other reason deemed sufficient by a majority of the Board, the Board may delegate the absent or disabled officer’s powers
or duties to any other officer or to any director.
(b) Chief
Executive Officer. Unless the Board has designated another person as the Company’s Chief Executive Officer, the President shall
be the Chief Executive Officer of the Company. The Chief Executive Officer shall have general charge and supervision of the business of
the Company subject to the direction of the Board, and shall perform all duties and have all powers that are commonly incident to the
office of chief executive or that are delegated to such officer by the Board. The President, if such exists, shall perform such other
duties and shall have such other powers as the Board or the Chief Executive Officer (if the President is not the Chief Executive Officer)
may from time to time prescribe.
(c) Vice
Presidents. Each Vice President shall have such powers and perform such duties as may be assigned to him or her from time to time
by the Board or the Chief Executive Officer (or the President if there is no Chief Executive Officer). The Board may assign to any Vice
President the title of Executive Vice President, Senior Vice President or any other title selected by the Board.
(d) Secretary;
Assistant Secretary. The Secretary, or an Assistant Secretary, shall attend all sessions of the Board and all meetings of the stockholders
and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for committees
when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board, and shall
perform such other duties as may be assigned by the Board. The Secretary, or an Assistant Secretary, shall keep in safe custody the seal
of the Company and have authority to affix the seal to all documents requiring it and attest to the same.
(e) Treasurer;
Assistant Treasurer. The Treasurer, or an Assistant Treasurer, shall have the custody of the corporate funds and other property of
the Company, except as otherwise provided by the Board, and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Board. The Treasurer, or an Assistant Treasurer, shall disburse the funds of the Company as may
be ordered by the Board, taking proper vouchers for such disbursements, and whenever requested by the Board, shall render an account of
all his or her transactions as treasurer and of the financial condition of the Company, and shall perform such other duties as may be
assigned by the Board.
(f) Delegation
of Authority. The Board may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding
the provisions herein.
(g) Voting
Securities Owned by the Company. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Company may be executed in the name of and on behalf of the Company by the Chief Executive Officer, the President,
any Vice President or any other officer authorized to do so by the Board and any such officer may, in the name of and on behalf of the
Company, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders
of any company in which the Company may own securities and at any such meeting shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner thereof, the Company might have exercised and possessed if present.
The Board may, by resolution, from time to time confer like powers upon any other person or persons.
(h) Chairman
of the Board. The Board, in its discretion, may choose a Chairman (who shall be a director but need not be elected as an officer).
The Chairman of the Board shall preside at all meetings of the stockholders and all meetings of the Board. The Chairman of the Board shall
perform such other duties and may exercise such other powers as may from time to time be assigned by these Bylaws or by the Board.
31. Compensation.
The compensation of all directors and the executive officers of the Company will be fixed by the Board or by a committee of the Board.
The Board may fix or delegate the power to fix, the compensation of other officers and agents of the Company to an officer of the Company.
32. Succession.
The officers of the Company will hold office until their successors are elected and qualified or until such officer’s earlier death,
resignation or removal. Any officer may be removed at any time by the affirmative vote of a majority of the Whole Board. Any vacancy
occurring in any office of the Company may be filled by the Board or by the Chairman as provided in Section 29.
Any officer of the Company may resign at any time by giving written notice of his or her resignation to the Chief Executive Officer,
the President or the Secretary. Such resignation shall be effective upon receipt unless such notice provides that the resignation is
effective at some later time or upon the occurrence of some later event.
33. Authority and
Duties. Each of the officers of the Company will have such authority and will perform
such duties as are customarily incident to their respective offices or as may be specified from time to time by the Board.
STOCK
34. Certificates.
The Board may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the Company shall
be uncertificated shares. Certificates, if any, representing shares of stock of the Company will be in such form as is determined by
the Board, subject to applicable legal requirements. Each such certificate shall be numbered and shall be signed by, or in the name of
the Company by, the Chairman, or Chief Executive Officer or Chief Financial Officer, and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary. Any or all of the signatures on a certificate may be a facsimile signature. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he
or she were such officer, transfer agent or registrar at the date of issue.
35. Lost, Stolen
or Destroyed Certificates. The Secretary may direct a new certificate or certificates
or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the Company alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate
of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates, the Secretary
may require the owners of such lost, stolen or destroyed certificate or certificates to give the Company a bond in such sum and with
such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Company with respect
to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate or uncertificated shares.
TRANSFERS
36. Transfers Generally.
(a) Transfers
of shares shall be made (a) upon the books of the Company only by the holder of record thereof, or by a duly authorized agent, transferee
or legal representative and (b) in the case of certificated shares, upon the surrender to the Company of the certificate or certificates
for such shares. No transfer shall be made that is inconsistent with the provisions of applicable law.
(b) The
Company shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes or series
of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes or series owned
by such stockholders in any manner not prohibited by the DGCL.
37. Lock-Up.
(a) Subject
to Section 37, the holders
of Lock-Up Shares (the “Lock-Up Holders”), and their permitted transferees in accordance with this Section
37, may not effect any Transfer
of any Lock-up Shares until the expiration of the Lock-Up Period.
(b) Permitted
Transfers. The restrictions set forth in Section 37(a)
shall not apply to Transfers permitted by this Section 37(b)
or Transfers by any Lock-Up Holder following the expiration of the Lock-Up Period. Notwithstanding anything to the contrary contained
in these Bylaws, the Transfer restrictions set forth in Section 37(a),
during the Lock-Up Period, shall not apply to:
(i) in
the case of an entity, Transfers to a stockholder, partner, member, equityholder or affiliate of such entity;
(ii) in
the case of an individual, Transfers by gift to members of the individual’s immediate family (as defined below) of an affiliate
of such individual or to a trust, the beneficiary of which is a member of one of the individual’s immediate family;
(iii) Transfers
to a charitable organization;
(iv) Transfers
to any investment funds or vehicles controlled or managed by such Lock-Up Holder or any of his, her or its affiliates;
(v) in
the case of an individual, Transfers by virtue of laws of descent and distribution upon death of the individual;
(vi) in
the case of an individual, Transfers pursuant to a qualified domestic relations order;
(vii) in
the case of an entity, Transfers by virtue of the laws of the jurisdiction of the entity’s organization and the entity’s organizational
documents upon dissolution of the entity;
(viii) the
exercise of any options or warrants to purchase shares of common stock of the Company (which exercises may be effected on a cashless basis
to the extent the instruments representing such options or warrants permit exercises on a cashless basis), provided that the Lock-Up Holder
shall comply with the Transfer restrictions set forth in this Section 37
applicable to such underlying shares of common stock of the Company;
(ix) Transfers
to the Company to satisfy tax withholding obligations pursuant to the Company’s equity incentive plans or arrangements;
(x) Transfers
to the Company pursuant to any contractual arrangement in effect at the consummation of the transactions contemplated in the Business
Combination Agreement (such time is referred to in this Section 37
as, the “Closing”) that provides for the repurchase by the Company or forfeiture of the Lock-Up Holder’s
shares in the Company or other securities convertible into or exercisable or exchangeable for shares in the Company in connection with
the termination of the Lock-Up Holder’s service to the Company;
(xi) the
entry, by the Lock-Up Holder, at any time after the Closing, into any trading plan providing for the sale of Lock-Up Shares by the Lock-Up
Holder, which trading plan meets the requirements of Rule 10b5-1(c) under the Exchange Act; provided, however, that such
plan does not provide for, or permit, the sale of any Lock-Up Shares during the Lock-Up Period and no public announcement or filing is
voluntarily made or required regarding such plan during the Lock-Up Period;
(xii) transactions
in the event of completion of a liquidation, merger, stock exchange or other similar transaction that results in all of the Company’s
stockholders having the right to exchange their Lock-Up Shares for cash, securities or other property; and
(xiii) transactions
approved by the Board in its sole discretion to satisfy any U.S. federal, state, or local income tax obligations of the Lock-Up Holder
(or its direct or indirect owners) arising from a change in the U.S. Internal Revenue Code of 1986, as amended (the “Code”),
or the U.S. Treasury Regulations promulgated thereunder after the date on which the Business Combination Agreement was executed by the
parties thereto, and such change prevents such transaction from qualifying as a “reorganization” pursuant to Section 368
or as a transaction that qualifies for tax deferral under Section 351 of the Code (and such transaction does not qualify for similar
tax-free treatment pursuant to any successor or other provision of the Code or Regulations taking into account such changes), in each
case, solely and to the extent necessary to cover any tax liability as a direct result of the transactions contemplated by the Business
Combination Agreement;
provided, however,
that (x) in the case of clauses (i) through (vii), such Transfer does not involve a disposition for value and (y) in the case of clauses
(i) through (vii), these permitted transferees must enter into a written agreement, in a form reasonably satisfactory to the Board (it
being understood that any references to “immediate family” in the agreement executed by such transferee shall expressly refer
only to the immediate family of the Lock-Up Holder and not to the immediate family of the transferee), agreeing to be bound by the Transfer
restrictions set forth in this Section 37.
(c) Authority.
(i) Notwithstanding
the other provisions set forth in this Section 37,
the Board may, in its sole discretion, determine to waive, amend, release or repeal the Lock-Up obligations set forth herein, in whole
or in part (including, without limitation, any waiver, amendment, release or repeal, in connection with any agreement, investment, or
otherwise); provided, that, any such waiver, amendment or repeal of any Lock-Up obligations set forth herein shall require, in addition
to any other vote of the members of the Board required to take such action pursuant to these Bylaws or applicable law, the affirmative
vote of the majority of the disinterested directors; provided, however, that, to the extent the applicable Lock-Up Holder
is a stockholder or other person is party to a contractual lock-up, standoff, or similar agreement (a “Lock-Up Agreement”),
no waiver, amendment or repeal of the Lock-Up obligations set forth herein by the Board shall affect any provisions, rights, obligations
or restrictions applicable to such Lock-Up Holder in such Lock-Up Agreement, which provisions, rights, obligations and restrictions in
the Lock-Up Agreement shall continue to apply to such Lock-Up Holder and Lock-Up Shares held by such Lock-Up Holder in accordance with
the terms of such Lock-Up Agreement. In the event there is any conflict between these Bylaws and a Lock-Up Agreement, the terms of the
Lock-Up Agreement shall prevail.
(d) Miscellaneous
Provisions Relating to Transfers of Lock-Up Shares.
(i) The
Company shall place customary restrictive legends on the certificates or book entries representing the Lock-Up Shares, in addition to
any legends required by applicable law or these Bylaws, and remove such restrictive legends reasonably promptly after the expiration of
the Lock-Up Period.
(ii) Any
attempt to Transfer any Lock-Up Shares that is not in compliance with this Section 37
shall be null and void ab initio, and the Company shall not, and shall cause any transfer agent not to, give any effect in the Company’s
stock records to such attempted Transfer and the purported transferee in any such purported Transfer shall not be treated as the owner
of such Lock-Up Shares for purposes of these Bylaws (provided that this Section 37
shall continue to apply to such Lock-Up Shares).
(iii) Notwithstanding
any other provision of this Section 37,
the Lock-Up Shares, in each case, beneficially owned (as defined in Rule 13d-3 promulgated under the Exchange Act) by a Lock-Up Holder
shall remain subject to any restrictions on Transfer under applicable federal, state, local or foreign securities laws, including all
applicable holding periods under the Securities Act of 1933 and other rules of the Securities Exchange Commission, and, as applicable,
these Bylaws and the Certificate of Incorporation.
(e) Definitions.
For purposes of this Section 37:
(i) the
term “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act of 1933, as amended;
(ii) The
term “Former USARE Stockholders” means the stockholders of the Company, excluding the Inflection Point Entities,
following the Closing that were formerly members of USA Rare Earth, LLC immediately prior to the closing of the Business Combination (and
for the avoidance of doubt, shall include those stockholders that were issued shares of common stock of the Company as consideration pursuant
to, and in accordance with, the Business Combination Agreement) and any stockholders of the Company with respect to shares of common stock
of the Company that are received pursuant to the permitted transfers under Section 37(b);
(iii) the
term “immediate family” shall mean a spouse, domestic partner, child, grandchild or other lineal descendant
(including by adoption), father, mother, brother or sister of the Lock-Up Holder;
(iv) the
term “Inflection Point Entities” shall mean, collectively, Inflection Point Asset Management LLC, Kingstown
Capital Management L.P., Newtyn Management, LLC, and their respective affiliates (including, for the avoidance of doubt, the funds any
of them manage) and permitted transferees.
(v) the
term “Lock-Up” shall refer to the restrictions on the Transfers of Lock-Up Shares set forth in Section 37(a).
(vi) the
term “Lock-Up Period” means the period beginning on the date of Closing and ending on the date that is twelve
(12) months after the date of Closing.
(vii) the
term “Lock-Up Shares” means any shares of common stock of the Company that are or will be issued or are or will
be issuable to the Former USARE Stockholders in connection with the transactions contemplated by the Business Combination Agreement, excluding
any (i) shares of common stock of the Company issuable upon conversion of any shares of the Company’s Preferred Stock and (ii) shares
of common stock of the Company issuable upon exercise of any warrants that are or will be issued or are or will be issuable to the Former
USARE Stockholders in connection with the transactions contemplated by the Business Combination Agreement; provided, however,
(A) that after the expiration of six months following the date of Closing, fifty percent (50%) of the Lock-Up Shares of any Former USARE
Stockholder that is subject to the Lock-Up shall cease to be Lock-Up Shares, and (B) that after the expiration of six months following
the date of Closing, if at any time, the closing price of the Company’s common stock on the national securities exchange on which
such securities are listed equals or exceeds $12.00 per share (subject to adjustment for any stock splits or stock dividends with respect
to the Company’s common stock) for any 20 trading days within any 30 trading day period (such 30 trading day period to commence
no earlier than the expiration of six months following the date of Closing), the remaining Lock-Up Shares shall cease to be Lock-Up Shares.
(viii) The
term “Transfer” or “Transfers” means any action to (i) sell, offer to sell, contract
or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16
of the Exchange Act, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, any Lock-Up Shares,
any Lock-Up Shares issuable upon the exercise of any options or warrants to purchase Lock-Up Shares, or any securities convertible into
or exercisable or exchangeable for Lock-Up Shares, (ii) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of any of such Lock-up Shares or securities convertible into or exercisable or
exchangeable for Lock-Up Shares, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise or
(iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii).
GENERAL
38. Fiscal Year.
The fiscal year of the Company will end on December 31 of each calendar year or such other date as may be fixed from time to time by
the Board.
39. Reliance upon
Books, Reports and Records. Each director, each member of a committee designated by the
Board, and each officer of the Company will, in the performance of his or her duties, be fully protected in relying in good faith upon
the records of the Company and upon such information, opinions, reports, or statements presented to the Company by any of the Company’s
officers or employees, or committees of the Board, or by any other person or entity as to matters the director, committee member, or
officer believes are within such other person’s professional or expert competence and who has been selected with reasonable care
by or on behalf of the Company.
40. Amendments.
Notwithstanding any other provision of these Bylaws, any alteration, amendment or repeal of these Bylaws, or the adoption of new Bylaws,
shall require the approval of the Board or the stockholders of the Corporation as provided by the Certificate of Incorporation (including
any applicable Preferred Stock Designation) and applicable law.
41. Certain Defined
Terms.
(a) Capitalized
terms used herein and not otherwise defined have the meanings given to them in the Certificate of Incorporation. The use of the term “days”
within these Bylaws, other than when referred to as “business days”, shall mean calendar days. The use of “business
days” shall mean days other than Saturday, Sunday, and any day designated as a federal holiday as observed by the U.S. Securities
and Exchange Commission. The use of “including” shall mean, including without limitation.
(b) “Business
Combination Agreement” shall mean that certain Business Combination Agreement, dated as of August 21, 2024, by and among
the Company, USA Rare Earth, LLC, and IPXX Merger Sub, LLC, as may be subsequently amended.
Exhibit C – Form of Certificate of Merger
CERTIFICATE OF MERGER
OF
IPXX MERGER SUB, LLC
WITH AND INTO
USA RARE EARTH, LLC
__________________, 2025
Pursuant to Title 6, Section
18-209 of the Delaware Limited Liability Company Act, as amended, the undersigned has executed the following Certificate of Merger:
| 1. | The name and jurisdiction of formation of the surviving limited
liability company is USA Rare Earth, LLC, a Delaware limited liability company (the “Surviving LLC”). |
| 2. | The name and jurisdiction of formation of the limited liability
company being merged into the Surviving LLC is IPXX Merger Sub, LLC, a Delaware limited liability company (the “Merging LLC”). |
| 3. | The name of the Surviving LLC shall remain as USA Rare Earth,
LLC. |
| 4. | An agreement and plan of merger (the “Merger Agreement”)
has been approved, adopted, certified, executed, and acknowledged by each of the Surviving LLC and the Merging LLC. |
| 5. | The Merger Agreement is on file at the principal place of
business of the Surviving LLC: c/o USA Rare Earth, LLC, 100 W Airport Road, Stillwater, OK 74075. |
| 6. | A copy of the Merger Agreement will be furnished by the Surviving
LLC, on request and without cost, to any member of the Surviving LLC or the Merging LLC. |
| 7. | This Certificate of Merger shall become effective as of 11:59
P.M. Eastern Time on _______________, 2025. |
[Signature Page Follows]
IN WITNESS WHEREOF, the Surviving LLC has
caused this Certificate of Merger to be duly executed as of the date first written above.
| |
SURVIVING LLC: |
| |
|
| |
USA Rare Earth, LLC, |
| |
a Delaware limited liability company |
| |
|
| |
By: |
|
| |
Name: |
David Kronenfeld |
| |
Title: |
Chief Legal Officer |
[Signature page to USA Rare Earth, LLC - Certificate
of Merger]
Exhibit D – Form of Series A Preferred
Stock Certificate of Designation
USA RARE EARTH, INC.
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION 151(g) OF THE
DELAWARE GENERAL CORPORATION LAW
The undersigned, [●],
does hereby certify that:
1. He
is the Chief Executive Officer of USA Rare Earth, Inc., a Delaware corporation (the “Corporation”).
2. The
Corporation is authorized to issue 50,000,000 shares of preferred stock, none of which have been issued.
3. The
following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):
WHEREAS, the certificate of
incorporation of the Corporation provides for a class of its authorized stock known as preferred stock, consisting of 50,000,000 shares,
$0.0001 par value per share, issuable from time to time in one or more series;
WHEREAS, the Board of Directors
is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation
preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof,
of any of them; and
WHEREAS, it is the desire
of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating
to a series of the preferred stock, which shall consist of, except as otherwise set forth in the Purchase Agreement, up to 50,000,000
shares of the preferred stock which the Corporation has the authority to issue, as follows:
NOW, THEREFORE, BE IT RESOLVED,
that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange of other securities,
rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of
preferred stock as follows:
TERMS OF 12.0% SERIES A CUMULATIVE CONVERTIBLE
PREFERRED STOCK
Section 1. Definitions.
For the purposes hereof, the following terms shall have the following meanings:
“Accrued
Dividend” shall have the meaning set forth in Section 3(a).
“Accrued
Value” means, as of any date, with respect to each share of Preferred Stock as of the determination date, the sum, subject to
appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to
the Preferred Stock, of (i) the Stated Value per share of Preferred Stock, plus (ii) the aggregate amount of any accrued PIK Dividends
on such share of Preferred Stock as of such date, plus (iii) on each Semi-Annual Dividend Date and on a cumulative basis, an additional
amount equal to the dollar value of all Cash Dividends that have accrued on such share pursuant to Section 3(a), but only
to the extent such Cash Dividends have not been paid, whether or not declared, but that have not, as of such date, been added to the Accrued
Value.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.
“Alternate
Consideration” shall have the meaning set forth in Section 7(f).
“Annual
Rate” means with respect to a PIK Dividend, 12.0% of the Accrued Value and with respect to a Cash Dividend, 10% of the Accrued
Value.
“Applicable
Price” shall have the meaning set forth in Section 7(b).
“Attribution
Parties” shall have the meaning set forth in Section 6(e).
“Available
Proceeds” shall have the meaning set forth in Section 5(c)(i).
“Beneficial
Ownership Limitation” shall have the meaning set forth in Section 6(e).
“Business
Combination” means the transactions contemplated by the Business Combination Agreement.
“Business
Combination Agreement” means that certain Business Combination Agreement, dated as of ______, by and among the Corporation (or
its predecessor), IPXX Merger Sub, LLC and USA Rare Earth, LLC.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “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 banks in The City of New York
generally are open for use by customers on such day.
“Buy-In”
shall have the meaning set forth in Section 6(c)(iv).
“Cash Dividend”
shall have the meaning set forth in Section 3(a).
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1 of the Purchase Agreement.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto and all conditions precedent to (i) each Holder’s obligations to pay for the Securities and (ii) the Corporation’s
obligations to deliver the Securities have been satisfied or waived.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock, par value $0.0001 per share, of the Corporation and stock of any other class of securities into
which such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Corporation that would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Conversion
Date” shall have the meaning set forth in Section 6(a).
“Conversion
Price” shall have the meaning set forth in Section 6(b).
“Conversion
Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in accordance
with the terms hereof.
“Convertible
Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable
for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock;
“Corporation
Notice” shall have the meaning set forth in Section 8(a).
“Deemed
Liquidation Event” means: (i) a merger or consolidation in which (a) the Corporation is a constituent party or (b) a subsidiary
of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation;
provided, that, a Deemed Liquidation Event shall not include any such merger or consolidation involving the Corporation or a subsidiary
in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent,
or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at
least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) if the surviving or resulting
corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation
of such surviving or resulting corporation; or (ii) (a) the sale, in a single transaction or series of related transactions, by the Corporation
or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole,
or (b) the sale or disposition (whether by merger, consolidation or otherwise, and whether in a single transaction or a series of related
transactions) of one (1) or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries
taken as a whole are held by such subsidiary or subsidiaries, except where such sale is to a wholly owned subsidiary of the Corporation.
“Delaware
Courts” shall have the meaning set forth in Section 9(d).
“Dilutive
Issuance” shall have the meaning set forth in Section 7(b).
“Distribution”
shall have the meaning set forth in Section 7(e).
“Effective
Date” means the date that the Registration Statement filed by the Corporation pursuant to the Registration Rights Agreement
is first declared effective by the Commission.
“Equity
Conditions” means (i) the Common Stock is duly authorized, listed and eligible for trading without restriction on a Trading
Market, (ii) a resale registration statement shall be declared effective covering all Common Stock issuable to the Holders (assuming for
this purpose that conversion occurs at a Conversion Price equal to the Floor Price), (iii) the Corporation’s filings with the U.S.
Securities and Exchange Commission are current, (iv) issuance of additional shares of Common Stock to the applicable Holder will not violate
such Holder’s Beneficial Ownership Limitation and (v) the Corporation is in compliance with the Transaction Documents in all material
respects.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded
Shares” shall have the meaning set forth in Section 8(b)(ii).
“Exempt
Issuance” means the issuance of (a) any securities of the Corporation to employees, officers or directors, consultants, contractors,
vendors or other agents of the Corporation pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee
members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for
services rendered to the Corporation, (b) securities upon the exercise or exchange of or conversion of any Securities issued pursuant
to the Purchase Agreements or the Business Combination Agreement and/or other securities exercisable or exchangeable for or convertible
into shares of Common Stock issued and outstanding on the Subscription Date, provided that such securities have not been
amended since the Subscription Dates to increase the number of such securities or to decrease the exercise price, exchange price or conversion
price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (c) the
Underlying Shares, (d) securities issued pursuant to any merger, acquisition or strategic transaction or partnership approved by a majority
of the directors of the Corporation, provided that (i) such securities are issued as “restricted securities”
(as defined in Rule 144) or are issued pursuant to an effective registration statement pursuant to the Securities Act and (ii) any such
issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company
or an owner of an asset in a business synergistic with the business of the Corporation and shall provide to the Corporation additional
benefits in addition to the investment of funds, and (e) any securities issued by the Corporation pursuant to any legal settlement or
similar arrangement agreed or entered into by the Corporation, provided that, in the aggregate, not more than [●]
shares of Common Stock are issued or deemed issued or issuable upon conversion, settlement, exercise or exchange of any such securities
that are Options or Convertible Securities, but any such Exempt Issuance shall not include a transaction in which the Corporation
is issuing securities (i) primarily for the purpose of raising capital, including an at-the-market offering, and (ii) to an entity whose
primary business is investing in securities.
“Floor
Price” means the lesser of (i) $5.00 (as adjusted for any stock dividend, stock split, stock combination, reclassification or
similar transaction occurring after the date of the Purchase Agreement) and (ii) the Conversion Price then in effect.
“Fundamental
Transaction” shall have the meaning set forth in Section 7(f).
“Holder”
shall have the meaning set forth in Section 2.
“Inflection
Point Entities” means, collectively, Inflection Point Asset Management LLC, Kingstown Capital Management L.P., Newtyn Management,
LLC, and their respective Affiliates (including, for the avoidance of doubt, the funds any of them manage).
“Junior
Securities” shall have the meaning set forth in Section 5(a).
“New Issuance
Price” shall have the meaning set forth in Section 7(b).
“Notice
of Conversion” shall have the meaning set forth in Section 6(a).
“Options”
means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
“Option
Value” means the value of an Option based on the Black and Scholes Option Pricing model obtained from the “OV” function
on Bloomberg determined as of (A) the Trading Day prior to the public announcement of the issuance of the applicable Option, if the issuance
of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance
of such Option is not publicly announced, for pricing purpose and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury
rate for a period equal to the remaining term of the applicable Option as of the applicable date of determination, (ii) an expected volatility
equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of (A) the Trading
Day immediately following the public announcement of the applicable Option if the issuance of such Option is publicly announced or (B)
the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced,
(iii) the underlying price per share used in such calculation shall be the highest weighted average price of the Common Stock during the
period beginning on the Trading Day prior to the execution of definitive documentation relating to the issuance of the applicable Option
and ending on (A) the Trading Day immediately following the public announcement of such issuance, if the issuance of such Option is publicly
announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly
announced, (iv) a zero cost of borrow and (v) a 360 day annualization factor.
“Original
Issue Date” means the date of the first issuance of any shares of the Preferred Stock regardless of the number of transfers
of any particular shares of Preferred Stock and regardless of the number of certificates which may be issued to evidence such Preferred
Stock.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“PIK Dividend”
shall have the meaning set forth in Section 3(a).
“Preferred
Stock” shall have the meaning set forth in Section 2.
“Preferred
Stock Liquidation Amount” shall have the meaning set forth in Section 5(b).
“Preferred
Stock Register” shall have the meaning set forth in Section 2.
“Purchase
Agreements” means the several Securities Purchase Agreements, among the Corporation and the original Holders, as amended, modified
or supplemented from time to time in accordance with its terms.
“Purchase
Rights” shall have the meaning set forth in Section 7(d).
“Redemption
Date” shall have the meaning set forth in Section 8(b)(i).
“Redemption
Notice” shall have the meaning set forth in Section 8(b)(ii).
“Redemption
Price” shall have the meaning set forth in Section 8(b)(i).
“Redemption
Request” shall have the meaning set forth in Section 8(b)(i).
“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the Closing Date, among the Corporation and the original
Holders, in the form of Exhibit B attached to the Purchase Agreement.
“Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering
the resale of the Underlying Shares by each Holder as provided for in the Registration Rights Agreement, including the Initial Registration
Statement (as defined in the Registration Rights Agreement) and any additional Registration Statements which may be required thereunder.
“Required
Holders” shall have the meaning set forth in Section 4(c).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Securities”
means the Preferred Stock, the Warrants and the Underlying Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Semi-Annual
Dividend Date” shall mean June 1 and December 1 of each year.
“Share
Delivery Date” shall have the meaning set forth in Section 6(c).
“Standard
Settlement Period” shall have the meaning set forth in Section 6(c)(i).
“Stated
Value” shall have the meaning set forth in Section 2.
“Subscription
Date” shall mean the date of the applicable Purchase Agreement.
“Subsidiary”
means any subsidiary of the Corporation as of the Closing Date and shall, where applicable, also include any direct or indirect subsidiary
of the Corporation formed or acquired after the earliest Subscription Date.
“Successor
Entity” shall have the meaning set forth in Section 7(f).
“Trading
Day” means a day on which the principal Trading Market is open for business.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Certificate of Designation, the Purchase Agreement, the Warrants, the Registration Rights Agreement, all
exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated
pursuant to the Purchase Agreement.
“Transfer
Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Corporation, and any successor
transfer agent of the Corporation.
“Underlying
Shares” means the Conversion Shares and the Warrant Shares.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for the 20 Trading Days preceding such date (or
the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market,
the volume weighted average price of the Common Stock for the 20 Trading Days preceding such date (or the nearest preceding date) on OTCQB
or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common
Stock are then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices),
the average of the highest closing bid price and the lowest closing ask price of the Common Stock for the 20 Trading Days preceding such
date, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in
good faith by the Holders of a majority in interest of the Preferred Stock then outstanding and reasonably acceptable to the Corporation,
the fees and expenses of which shall be paid by the Corporation.
“Warrant
Shares” means, collectively, the shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms
of the Warrants.
“Warrants”
means, collectively, the warrants to purchase shares of Common Stock issued pursuant to the Purchase Agreement.
Section 2. Designation,
Amount and Par Value.
(a) The
series of preferred stock shall be designated as its “12.0% Series A Cumulative Convertible Preferred Stock” and the number
of shares so designated shall be up to 50,000,000 (which shall not be subject to increase without the written consent of the holders of
50% of the then outstanding Preferred Stock (each, a “Holder” and collectively, the “Holders”)).
Each share of Preferred Stock shall have a par value of $0.0001 per share and a stated value equal to $12.00 (the “Stated Value”).
(b) The
Corporation shall register, or cause its Transfer Agent to register, shares of the Preferred Stock upon records to be maintained by the
Corporation or its Transfer Agent for that purpose (the “Preferred Stock Register”), in the name of the Holders thereof
from time to time. The Corporation may deem and treat the registered Holder of shares of Preferred Stock as the absolute owner thereof
for the purpose of any conversion thereof and for all other purposes. The Corporation shall register, or cause its Transfer Agent to register,
the transfer of any shares of Preferred Stock in the Preferred Stock Register, upon surrender of the certificates evidencing such shares
to be transferred, duly endorsed by the Holder thereof, to the Corporation at its address specified herein. Upon any such registration
or transfer, a new certificate evidencing the shares of Preferred Stock so transferred shall be issued to the transferee and a new certificate
evidencing the remaining portion of the shares not so transferred, if any, shall be issued to the transferring Holder, in each case, within
three Business Days.
Section 3. Dividends.
(a) From
and after the Closing, subject to the terms of this Section 3, cumulative dividends shall accrue on the Accrued Value of each
share of Preferred Stock at the Annual Rate. Dividends on each share of Preferred Stock shall be cumulative and shall accrue daily from
and after the Closing, but shall compound on a semi-annual basis on each Semi-Annual Dividend Date (each, an “Accrued Dividend”)
whether or not earned or declared, and whether or not there are earnings or profits, surplus, or other funds or assets of the Corporation
legally available for the payment of dividends. Each Accrued Dividend shall be paid, at the election of the Corporation, (i) in cash (a
“Cash Dividend”), or (ii) in kind by increasing the Accrued Value of such share (a “PIK Dividend”).
(b) The
Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation
ranking junior to the “12.0% Series A Cumulative Convertible Preferred Stock (other than dividends on shares of Common Stock payable
in shares of Common Stock) unless (in addition to the obtaining of any consents required in this Certificate of Designation or the Corporation’s
certificate of incorporation) the Holders of the Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend
on each outstanding share of Preferred Stock in an amount at least equal to the sum of (i) the amount of the aggregate Accrued Dividends
then accrued on such share of Preferred Stock and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class
or series that is convertible into Common Stock, that dividend per share of Preferred Stock as would equal the product of (1) the dividend
payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into
Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series A Preferred Stock, in each case
calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class
or series of capital stock of the Corporation ranking junior to the 12.0% Series A Cumulative Preferred Stock that is not convertible
into Common Stock, at a rate per share of Preferred Stock determined by (1) dividing the amount of the dividend payable on each share
of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or
series) and (2) multiplying such fraction by an amount equal to the Accrued Value; provided that if the Corporation declares, pays or
sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation that is junior
to the “12.0% Series A Cumulative Convertible Preferred Stock, the dividend payable to the Holders of Preferred Stock pursuant to
this Section 3 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest
Preferred Stock dividend.
(c) Subject
to Section 5 and Section 7, the Holders shall be entitled to receive, and the Corporation shall pay, dividends
on shares of Preferred Stock (other than Accrued Dividends), on an as-converted basis, equal to and in the same form as dividends actually
paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock.
Section 4. Voting Rights.
(a) The
Holders shall be entitled to notice of any meeting of stockholders of the Corporation and, except as otherwise required by law, shall
vote together with the holders of Common Stock as a single class upon any matter submitted to the stockholders for a vote.
(b) On
any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of the stockholders of the
Corporation (or by written consent in lieu of a meeting), a Holder, together with its Attribution Parties, shall be entitled to the number
of votes equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held by such Holder, together with
its Attribution Parties, as are convertible on the record date for determining stockholders entitled to vote on such matter (as adjusted
from time to time pursuant to Section 6 hereof and subject to the Beneficial Ownership Limitation), but without regard as
to whether sufficient shares of Common Stock are available out of the Corporation’s authorized by unissued stock, for the purpose
of effecting the conversion of the Preferred Stock.
(c) As
long as the Inflection Point Entities hold 20% or more of the shares of Preferred Stock issued as of the closing of the Business Combination,
the Corporation shall not, without the affirmative vote or action by written consent of the Holders of 80% of the issued and outstanding
shares of the Preferred Stock (the “Required Holders”):
(i) liquidate,
dissolve or wind-up the affairs of the Corporation;
(ii) amend,
alter or repeal the Corporation’s certificate of incorporation or bylaws, this Certificate of Designation or any similar document
of the Corporation in a manner that materially and adversely affects the powers, preferences or rights given to the Preferred Stock;
(iii) create
any equity security, authorize the creation of any equity security, classify any equity security, reclassify any equity security, or issue
any other security convertible into or exercisable for any equity security, unless such security ranks junior to the Preferred Stock with
respect to its rights, preferences and privileges or increase the number of authorized shares of Preferred Stock;
(iv) except
as set forth in Section 3, purchase or redeem or pay any cash dividend on any capital stock of the Corporation ranking junior to the 12.0%
Series A Cumulative Preferred Stock prior to payment of such cash dividend on the Preferred Stock or purchase or redeem and capital stock
of the Corporation ranking junior to the 12.0% Series A Cumulative Preferred Stock, other than capital stock repurchased at cost from
former employees and consultants in connection with the cessation of their service or pursuant to the terms of any equity incentive plan
of the Corporation;
(v) enter
into any transaction with an affiliate, other than the issuance of equity or awards to eligible participants under the Corporation’s
incentive plan, equity plan or equity-based compensation plan, or with respect to employment, consulting or award agreements with respect
to executive officers of the Corporation, in each case regardless of whether such person (or such person’s affiliates) would be
considered an affiliate of the Corporation; or
(vi) incur
or guarantee any indebtedness other than equipment leases or trade payables incurred in the ordinary course of business, if the aggregate
indebtedness of the Corporation and its subsidiaries for borrowed money following such action would exceed $5,000,000; provided,
however, that the Preferred Stock shall not be considered indebtedness for purposes of this calculation.
(d)
Notwithstanding anything to the contrary herein, Section 6(d) may not be amended, modified or waived.
Section 5. Ranking;
Liquidation.
(a) The
Preferred Stock shall rank senior to all of the Common Stock and any class or series of capital stock of the Corporation currently existing,
(collectively, “Junior Securities”), in each case, as to dividends or distributions of assets upon liquidation, dissolution
or winding up of the Corporation, whether voluntarily or involuntarily.
(b) Preferential
Payments to Holders of Preferred Stock; Distribution of Remaining Assets.
(i) In
the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the Holders of shares of Preferred
Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders,
and in the event of a Deemed Liquidation Event, the Holders of shares of Preferred Stock then outstanding shall be entitled to be paid
out of the consideration payable to stockholders in such Deemed Liquidation Event or out of the Available Proceeds (as defined below),
as applicable, before any payment shall be made to the holders of Common Stock or other Junior Securities by reason of their ownership
thereof, an amount per share equal to the greater of (i) 100% of the Accrued Value or (ii) such amount per share as would have been
payable had all shares of Preferred Stock been converted into Common Stock pursuant to Section 6 immediately prior to such
liquidation, dissolution, winding up or Deemed Liquidation Event based on the then effective rate of conversion and without giving effect
to the Beneficial Ownership Limitation or any other limitations on conversion set forth herein. If upon any such liquidation, dissolution
or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to its stockholders
shall be insufficient to pay the Holders of shares of Preferred Stock the full amount to which they shall be entitled under this Section 5(b),
the Holders of shares of Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion
to the respective amounts that would otherwise be payable in respect of the shares held by them upon such distribution if all amounts
payable on or with respect to such shares were paid in full.
(ii) In
the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after the payment in full of all
amounts required to be paid to the holders of shares of Preferred Stock pursuant to Section 5(b)(i), the remaining assets of the
Corporation available for distribution to its stockholders or, in the case of a Deemed Liquidation Event, the consideration not payable
to the holders of shares of Preferred Stock pursuant to Section 5(b)(i) or the remaining Available Proceeds, as the case may be,
shall be distributed among the holders of the shares of Preferred Stock and Common Stock, pro rata based on the number of shares held
by each such holder, treating for this purpose all such securities as if they had been converted to Common Stock pursuant to the terms
of this Certificate of Designation immediately prior to such liquidation, dissolution or winding up of the Corporation. The aggregate
amount which a holder of a share of Preferred Stock is entitled to receive under Sections 5(b)(i) and 5(b)(ii) is hereinafter
referred to as the “Preferred Stock Liquidation Amount.”
(c) Deemed
Liquidation Events.
(i) In
the event of a Deemed Liquidation Event, if the Corporation does not effect a dissolution of the Corporation under the Delaware General
Corporation Law within ninety (90) days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice to each
Holder of Preferred Stock no later than the ninetieth (90th) day after the Deemed Liquidation Event advising such Holders of
their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause to require the redemption
of such shares of Preferred Stock, and (ii) if the Required Holders so request in a written instrument delivered to the Corporation not
later than one hundred twenty (120) days after such Deemed Liquidation Event, the Corporation shall use the consideration received by
the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed,
or any other expenses associated with the Deemed Liquidation Event or the dissolution of the Corporation, in each case as determined in
good faith by the Board of Directors of the Corporation), together with any other assets of the Corporation available for distribution
to its stockholders, all to the extent permitted by Delaware law governing distributions to stockholders (the “Available Proceeds”),
on the one hundred fiftieth (150th) day after such Deemed Liquidation Event, to redeem all outstanding shares of Preferred
Stock at a price per share equal to the Preferred Stock Liquidation Amount. Notwithstanding the foregoing, in the event of a redemption
pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding shares of Preferred Stock,
the Corporation shall redeem a pro rata portion of each Holder’s shares of Preferred Stock to the fullest extent of such Available
Proceeds, based on the respective amounts that would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds
were sufficient to redeem all such shares, and shall redeem the remaining shares as soon as it may lawfully do so under Delaware law governing
distributions to stockholders. The provisions of Section 8 shall apply, with such necessary changes in the details thereof
as are necessitated by the context, to the redemption of the Preferred Stock pursuant to this Section 5(c)(i). Prior to the distribution
or redemption provided for in this Section 5(c)(i), the Corporation shall not expend or dissipate the consideration received for
such Deemed Liquidation Event, except to discharge expenses incurred in connection with such Deemed Liquidation Event.
(ii) In
any Deemed Liquidation Event, if Available Proceeds are in a form of property other than in cash, the value of such distribution shall
be deemed to be the fair market value of such property. The determination of fair market value of such property shall be made in good
faith by the Board of Directors of the Corporation, provided that to the extent such property consists of securities, the fair market
value of such securities shall be determined as follows:
For securities not subject
to investment letters or other similar restrictions on free marketability covered by Section 5(c)(iii) below, the value shall be
the VWAP of such securities.
(iii) The
method of valuation of securities subject to investment letters or other similar restrictions on free marketability (other than restrictions
arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall take into account an appropriate discount
(as determined in good faith by the Board of Directors of the Corporation) from the market value as determined pursuant to Section
5(c)(ii) above so as to reflect the approximate fair market value thereof.
(iv) If
any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the
“Additional Consideration”), (a) the portion of such consideration that is not Additional Consideration (such portion, the
“Initial Consideration”) shall be allocated in accordance with the foregoing Sections 5(b) or 5(c) as if the Initial Consideration
were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which becomes
payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital
stock of the Corporation in accordance with Sections 5(b) and 5(c) after taking into account the previous payment of the Initial Consideration
as part of the same transaction. For the purposes of this Section 5(c)(iv), consideration placed into escrow or retained as a holdback
to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed
to be Additional Consideration.
Section 6. Conversion.
(a) Conversions
at Option of Holder. Each share of Preferred Stock shall be convertible, at any time and from time to time from and after the Original
Issue Date at the option of the Holder thereof, into that number of whole shares of Common Stock (subject to the limitations set forth
in Section 6(d)) determined by dividing the Accrued Value of such share of Preferred Stock by the Conversion Price. Holders
shall effect conversions by providing the Corporation with the form of conversion notice attached hereto as Annex A (a “Notice
of Conversion”), unless the Corporation does not serve as its transfer agent, in which event the Notice of Conversion shall
be delivered to the Corporation’s transfer agent. Each Notice of Conversion shall specify the number of shares of Preferred Stock
to be converted, the number of shares of Preferred Stock owned prior to the conversion at issue, the number of shares of Preferred Stock
owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which date may not be prior to the
date the applicable Holder delivers by e-mail attachment or by a nationally recognized overnight courier service such Notice of Conversion
to the Corporation (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion,
the Conversion Date shall be the date that such Notice of Conversion to the Corporation is deemed delivered hereunder. No ink-original
Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of
Conversion form be required. The calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest
or mathematical error. To effect conversions of shares of Preferred Stock, a Holder shall not be required to surrender the certificate(s)
representing the shares of Preferred Stock to the Corporation unless all of the shares of Preferred Stock represented thereby are so converted,
in which case such Holder shall deliver the certificate representing such shares of Preferred Stock promptly following the Conversion
Date at issue. Shares of Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled
and shall not be reissued, and all rights (other than the right to receive the Conversion Shares) with respect to such shares will terminate.
The Corporation’s stock ledger and transfer book shall serve as the exclusive record of outstanding shares of Preferred Stock.
(b) Conversion
Price. The initial conversion price is $12.00, subject to adjustment herein (the “Conversion Price”).
(c) Mechanics
of Conversion
(i) Delivery
of Conversion Shares Upon Conversion. Not later than the number of Trading Days comprising the Standard Settlement Period (as defined
below) after each Conversion Date (the “Share Delivery Date”), the Corporation shall deliver, or cause to be delivered,
to the converting Holder (A) the number of Conversion Shares being acquired upon the conversion of the Preferred Stock, which on or after
the earlier of (i) the one year anniversary of the Original Issue Date or (ii) the Effective Date, shall be free of restrictive legends
and trading restrictions (other than those which may then be required by the Purchase Agreement or any other applicable lock-up agreement
or similar agreement) and (B) cash in an amount equal to any accrued and unpaid dividends, if any. On or after the earlier of (i) the
one year anniversary of the Original Issue Date or (ii) the Effective Date, the Corporation shall deliver the Conversion Shares required
to be delivered by the Corporation under this Section 6 electronically through the Depository Trust Company or another established
clearing corporation performing similar functions. As used herein, “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Corporation’s primary Trading Market with respect to the Common
Stock as in effect on the date of delivery of the Notice of Conversion. Notwithstanding the foregoing, with respect to any Notice(s) of
Conversion delivered at or prior to 12:00 p.m. (New York City time) on the Original Issue Date, the Corporation agrees to deliver the
Conversion Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Original Issue Date.
(ii) Failure
to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as reasonably
directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Corporation
at any time on or before its receipt of such Conversion Shares, to rescind such conversion, in which event the Corporation shall promptly
return to the Holder any original Preferred Stock certificate delivered to the Corporation and the Holder shall promptly return to the
Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Notice of Conversion.
(iii) Obligation
Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and deliver the Conversion Shares upon conversion
of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder
to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such
Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other
person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection
with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a
waiver by the Corporation of any such action that the Corporation may have against such Holder. In the event a Holder shall elect to convert
any or all of the Accrued Value of its Preferred Stock, the Corporation may not refuse conversion based on any claim that such Holder
or anyone associated or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason, unless
an injunction from a court, on notice to Holder, restraining and/or enjoining conversion of all or part of the Preferred Stock of such
Holder shall have been sought and obtained, and the Corporation posts a surety bond for the benefit of such Holder in the amount of 150%
of the Accrued Value of Preferred Stock which is subject to the injunction, which bond shall remain in effect until the completion of
arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to such Holder to the extent it obtains judgment.
In the absence of such injunction, the Corporation shall issue Conversion Shares and, if applicable, cash, upon a properly noticed conversion.
If the Corporation fails to deliver to a Holder such Conversion Shares pursuant to Section 6(c)(i) by 10th Trading Day
after the Share Delivery Date applicable to such conversion, the Corporation shall pay to such Holder, in cash, as liquidated damages
and not as a penalty, for each $5,000 of Accrued Value of Preferred Stock being converted, $25 per Trading Day (increasing to $50 per
Trading Day on the third Trading Day and increasing to $100 per Trading Day on the sixth Trading Day after such damages begin to accrue)
for each Trading Day after the 10th Trading Day after the Share Delivery Date until such Conversion Shares are delivered or
Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages for the Corporation’s
failure to deliver Conversion Shares within the period specified herein and such Holder shall have the right to pursue all remedies available
to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief. The exercise
of any such rights shall not prohibit a Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable
law.
(iv) Compensation
for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the Holder,
if the Corporation fails for any reason unrelated to the actions of the Holder or its Affiliates to deliver to a Holder the applicable
Conversion Shares by the Share Delivery Date pursuant to Section 6(c)(i), and if after such Share Delivery Date such Holder
is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise
purchases, shares of Common Stock to deliver in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled
to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Corporation shall (A) pay
in cash to such Holder (in addition to any other remedies available to or elected by such Holder) the amount, if any, by which (x) such
Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of
(1) the aggregate number of shares of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by
(2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (excluding any brokerage commissions)
and (B) at the option of such Holder, either reissue (if surrendered) the shares of Preferred Stock equal to the number of shares of Preferred
Stock submitted for conversion (in which case, such conversion shall be deemed rescinded) or deliver to such Holder the number of shares
of Common Stock that would have been issued if the Corporation had timely complied with its delivery requirements under Section 6(c)(i).
For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an
attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any
applicable brokerage commissions) giving rise to such purchase obligation was a total of $10,000, under clause (A) of the immediately
preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice
indicating the amounts payable to such Holder in respect of the Buy-In and, upon the request of the Corporation, evidence of the amount
of such loss. If a Holder purchases shares of Common Stock having a total purchase price of $9,000 to cover a Buy-In with respect to an
attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any
applicable brokerage commissions) giving rise to such purchase obligation was a total of $10,000, under clause (A) of the preceding sentence,
the Corporation shall not be required to pay Holder any amount. For the avoidance of doubt, in the event of a Buy-In, the Holder shall
use commercially reasonable efforts to purchase shares at the lowest available price, paying the lowest reasonably available brokerage
commission. The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In
and evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to
the Corporation’s failure to timely deliver Conversion Shares upon conversion of the shares of Preferred Stock as required pursuant
to the terms hereof.
(v) Reservation
of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized
and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Preferred Stock as herein provided, free from
preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other Holders of the Preferred
Stock), not less than such aggregate number of shares of the Common Stock as shall (subject to the terms and conditions set forth in the
Purchase Agreement) be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of
the then outstanding shares of Preferred Stock (assuming for such purpose a Conversion Price equal to the Floor Price and any such conversions
are made without regard to any limitations on conversion set forth herein). The Corporation covenants that all shares of Common Stock
that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if a Registration Statement
is then effective under the Securities Act, shall be registered for public resale in accordance with such Registration Statement (subject
to such Holder’s compliance with its obligations under the Registration Rights Agreement).
(vi) Fractional
Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Preferred Stock. As
to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Corporation shall at its
election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion
Price or round up to the next whole share. Notwithstanding anything to the contrary contained herein, but consistent with the provisions
of this subsection with respect to fractional Conversion Shares, nothing shall prevent any Holder from converting fractional shares of
Preferred Stock.
(vii) Transfer
Taxes and Expenses. The issuance of Conversion Shares on conversion of this Preferred Stock shall be made without charge to any Holder
for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided
that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance
and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Preferred Stock
and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting
the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation
that such tax has been paid.
(d) Beneficial
Ownership Limitation. A Holder may notify the Corporation in writing in the event it elects to be subject to the provisions contained
in this Section 6(d); however, no Holder shall be subject to this Section 6(d) unless he, she or it makes such election.
If the election is made, (i) the Corporation shall not effect any conversion of the Preferred Stock, and such Holder shall not have the
right to convert all or any portion of the Preferred Stock, to the extent that, after giving effect to the conversion set forth on the
applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together
with such Holder or any of such Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially
own in excess of 4.9%, 9.9%, 19.9% of the Corporation’s Common Stock (or such other amount as a Holder may specify) (the “Beneficial
Ownership Limitation”) and (ii) the Corporation shall not permit the Holder to vote, and such Holder shall not have the right
vote pursuant to Section 4(b) of this Certificate of Designation, all or any portion of the Preferred Stock that such Holder is
not permitted to convert pursuant to the preceding clause (i) (provided, however, that such Holder shall retain the right to vote pursuant
to Section 4(c) of this Certificate of Designation to the extent that retaining such right does not cause such Holder to be deemed
to beneficially own Conversion Shares within the meaning of Rule 13d-3 promulgated under the Exchange Act. For purposes of the foregoing
sentence, the number of shares of Common Stock beneficially owned by such Holder and its Affiliates and Attribution Parties shall include
the number of shares of Common Stock issuable upon conversion of the Preferred Stock with respect to which such determination is being
made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Accrued
Value of Preferred Stock beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise
analogous to the limitation contained herein (including, without limitation, the Preferred Stock or the Warrants) beneficially owned by
such Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 6(d),
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. To the extent that the limitation contained in this Section 6(d) applies, the determination of whether the Preferred
Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and of
how many shares of Preferred Stock are convertible shall be in the sole discretion of such Holder, and the submission of a Notice of Conversion
shall be deemed to be such Holder’s determination of whether the shares of Preferred Stock may be converted (in relation to other
securities owned by such Holder together with any Affiliates and Attribution Parties) and how many shares of the Preferred Stock are convertible,
in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each Holder will be deemed to
represent to the Corporation each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions
set forth in this paragraph and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition,
a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act
and the rules and regulations promulgated thereunder. The Holder shall provide the Corporation with any information reasonably requested
by the Corporation in connection with this Beneficial Ownership Limitation and the provisions related thereto, in each case with respect
to the Corporation's reporting obligations pursuant to the Securities Act, the Exchange Act, or other federal or state securities regulations.
For purposes of this Section 6(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the
number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic
or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more
recent written notice by the Corporation or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the
written or oral request (which may be via email) of a Holder, the Corporation shall within two Trading Days confirm orally and in writing
to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Preferred Stock, by such
Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported.
By written notice to the Corporation, a Holder may from time to time increase or decrease the Beneficial Ownership Limitation applicable
to such Holder, provided, however, that any such increase in the Beneficial Ownership Limitation will not be effective until the sixty-first
(61st) day after such notice is delivered to the Corporation. The provisions of this paragraph
shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(d) to
correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation
contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations
contained in this paragraph shall apply to a successor Holder of Preferred Stock.
Section 7. Certain
Adjustments.
(a) Stock
Dividends and Stock Splits. If the Corporation, at any time while this Preferred Stock is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock
Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of,
or payment of a dividend on, this Preferred Stock or any cash distributions), (ii) subdivides outstanding shares of Common Stock into
a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller
number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the
Corporation, then each of the Conversion Price and the Floor Price shall be multiplied by a fraction of which the numerator shall be the
number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of
which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant
to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
(b) VWAP
Reset. If on the twenty-first trading day following the date that is six months after the Closing Date, the VWAP (the “Measurement
Price”) is less than the Conversion Price then in effect, then the Conversion Price then in effect shall be reduced to an amount
equal to the greater of (i) the Measurement Price and (ii) $7.50.
(c) Adjustment
of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Closing Date until the first date on which no shares
of Preferred Stock are outstanding the Corporation issues or sells, or in accordance with this Section 7(c) is deemed
to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the
account of the Corporation, but excluding shares of Common Stock deemed to have been issued or sold by the Corporation
in connection with any Exempt Issuance) for a consideration per share (the “New Issuance Price”) less than the lesser
of (i) $10.00 and (ii) the Conversion Price then in effect (such price thresholds described in clauses (i) and (ii), collectively, the
“Applicable Price”, and each such issue, sale or deemed issuance or sale, a “Dilutive Issuance”),
in issuances and sales conducted for the purpose of raising capital by the Corporation where the aggregate amount of consideration received
by the Corporation, together with all prior issuances and sales conducted for the purpose of raising capital by the Corporation on or
after the Closing Date that were excluded from this Section 7(c) by this clause, exceeds $500,000, then, immediately after such
Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes
of the foregoing (including, without limitation, determining the adjusted Conversion Price and the New Issuance Price under this Section
7(c)), the following shall be applicable:
(i) Options
and Convertible Securities. The consideration per share received by the Corporation for Common Stock deemed to have been issued pursuant
to Section 7(d)(ii), relating to Options and Convertible Securities, shall be determined by dividing:
| a. | the total amount, if any, received or receivable by the Corporation as consideration for the issue of
such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the
Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options
for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible
Securities, by |
| b. | the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent adjustment of such number) deemed to be issued pursuant to Section 7(c)(ii)
upon the issuance of such Options or Convertible Securities. |
(ii) Deemed
Issuance of Options and Convertible Securities.
| a. | If the Corporation at any time or from time to time shall issue any Options or Convertible Securities
or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible
Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction
of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor,
the conversion or exchange of such Convertible Securities, shall be deemed to be outstanding and to have been issued as of the time of
such issue or, in case such a record date shall have been fixed, as of the close of business on such record date. |
| b. | If the purchase or exercise price provided for in any Options, the additional consideration, if any, payable
upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible
into or exercisable or exchangeable for Common Stock increases or decreases at any time (other than (i) proportional changes in conversion
or exercise prices, as applicable, in connection with an event referred to in Section 7(a) above and (ii) automatic adjustments
to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security which are not more favorable to the
holder thereof than the anti-dilution and similar provisions set forth herein), the Conversion Price in effect at the time of such increase
or decrease shall be adjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities
provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate (as the case
may be) at the time initially granted, issued or sold. For purposes of this Section 7(c), if the terms of any Option or Convertible
Security that was outstanding as of the date of first issuance of a share of Preferred Stock are increased or decreased in the manner
described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable
upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment
pursuant to this Section 7(c)(ii) shall be made if such adjustment would result in an increase of the Conversion Price then in
effect. |
(iii) Calculation
of Consideration Received. In case any Option is issued in connection with the issue or sale of other securities of the Corporation,
together comprising one integrated transaction, (x) the Options will be deemed to have been issued for the Option Value of such Options
and (y) the other securities issued or sold in such integrated transaction shall be deemed to have been issued or sold for the difference
of (I) the aggregate consideration received by the Corporation less any consideration paid or payable by the Corporation pursuant to the
terms of such other securities of the Corporation, less (II) the Option Value. If any shares of Common Stock, Options or Convertible Securities
are issued or sold or deemed to have been issued or sold for cash, the consideration other than cash received therefor will be deemed
to be the net amount received by the Corporation therefor. If any shares of Common Stock, Options or Convertible Securities are issued
or sold for a consideration other than cash, the amount of such consideration received by the Corporation will be the fair value of such
consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received
by the Corporation will be the VWAP of such publicly traded securities on the date of receipt. If any shares of Common Stock, Options
or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Corporation
is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and
business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case
may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Corporation
and the Required Holders. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring
valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Business
Days after the tenth (10th) day following the Valuation Event by an independent, reputable appraiser jointly selected by the Corporation
and the Required Holders. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the
fees and expenses of such appraiser shall be borne by the Corporation.
(iv) Record
Date. If the Corporation takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive
a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase
shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale
of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase (as the case may be).
(v) Expiration
or Termination of Options or Convertible Securities. Upon the expiration or termination of any unexercised Option or unconverted or
unexchanged Convertible Securities (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms)
in an adjustment to the Conversion Price pursuant to the terms of Section 7(c), the Conversion Price shall be readjusted to such
Conversion Price as would have obtained had such Option or Convertible Securities (or portion thereof) never been issued.
(d) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 7(a) or Section 7(b) above, if at any
time the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property
pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holders will
be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired
if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Preferred Stock
(without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights
(provided, however, that, to the extent that the Holder’s right to participate in any such Purchase
Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in
such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such
extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto
would not result in the Holder exceeding the Beneficial Ownership Limitation). To the extent that the issue price of such Purchase Rights
would result in an adjustment of the Conversion Price pursuant to Section 7(c), such adjustment shall not occur to the extent the Holders
were granted the right to acquire such Purchase Rights on the applicable terms.
(e) Pro
Rata Distributions. During such time as this Preferred Stock is outstanding, if the Corporation declares or makes any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or
otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
in each such case, the Holders shall be entitled to participate in such Distribution to the same extent that the Holders would have participated
therein if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Preferred Stock (without
regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before
the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of
shares of Common Stock are to be determined for the participation in such Distribution (provided, however,
to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever such grant, issuance or sale, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
(f) Fundamental
Transaction. If, at any time while this Preferred Stock is outstanding, (i) the Corporation, directly or indirectly, in one or more
related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation (and all
of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or
other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect,
purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of
Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the
holders of 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Corporation, (iv)
the Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization
of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for
other securities, cash or property (other than as a result of a stock split, combination or reclassification of shares of Common Stock
covered by Section 7(a)), or (v) the Corporation, directly or indirectly, in one or more related transactions consummates
a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with another Person whereby such other Person acquires 50% or more of the outstanding shares of Common
Stock or 50% or more of the voting power of the common equity of the Corporation (each a “Fundamental Transaction”),
then, upon any subsequent conversion of this Preferred Stock, the Holder shall have the right to receive, for each Conversion Share that
would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any
limitation in Section 6(d) on the conversion of this Preferred Stock), the number of shares of capital stock of the successor
or acquiring corporation or of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate
Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for
which this Preferred Stock is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(d)
on the conversion of this Preferred Stock). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately
adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a
reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock
are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given
the same choice as to the Alternate Consideration it receives upon any conversion of this Preferred Stock following such Fundamental Transaction.
To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental
Transaction shall file a new Certificate of Designation with the same terms and conditions and issue to the Holders new preferred stock
consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration.
The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the survivor (the “Successor
Entity”) to assume in writing all of the obligations of the Corporation under this Certificate of Designation and the other
Transaction Documents (as defined in the Purchase Agreement) in accordance with the provisions of this Section 7(e) pursuant
to written agreements in form and substance reasonably satisfactory to the Required Holders and approved by the Required Holders (without
unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder of this Preferred Stock, deliver to the
Holder in exchange for this Preferred Stock a security of the Successor Entity evidenced by a written instrument substantially similar
in form and substance to this Preferred Stock which is convertible for a corresponding number of shares of capital stock of such Successor
Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Preferred Stock
(without regard to any limitations on the conversion of this Preferred Stock) prior to such Fundamental Transaction, and with a conversion
price which applies the Conversion Price hereunder to such shares of capital stock (but taking into account the relative value of the
shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of
capital stock and such conversion price being for the purpose of protecting the economic value of this Preferred Stock immediately prior
to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Required Holders.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and
after the date of such Fundamental Transaction, the provisions of this Certificate of Designation and the other Transaction Documents
referring to the “Corporation” shall refer instead to the Successor Entity), and may exercise every right and power of the
Corporation and shall assume all of the obligations of the Corporation under this Certificate of Designation and the other Transaction
Documents with the same effect as if such Successor Entity had been named as the Corporation herein.
(g) Calculations.
All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may
be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given
date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.
(h) Notice
to the Holders.
(i) Adjustment
to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation
shall promptly deliver to each Holder by facsimile or email a notice setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
(ii) Notice
to Allow Conversion by Holder. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form) on the
Common Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Corporation
shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection with any
reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer of all or
substantially all of the assets of the Corporation (and all of its Subsidiaries, taken as a whole), or any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed
at each office or agency maintained for the purpose of conversion of this Preferred Stock, and shall cause to be delivered by email to
each Holder at its email address as it shall appear upon the stock books of the Corporation, at least twenty (20) calendar days prior
to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders
of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y)
the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close,
and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common
Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange,
provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity
of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains,
material, non-public information regarding the Corporation or any of the Subsidiaries, the Corporation shall simultaneously file such
notice with the Commission pursuant to a Current Report on Form 8-K, unless determined by the Company that such filing would be harmful
to the Company at such time, in which case the Company shall file such 8-K as soon as is reasonably practicable in its discretion. For
the avoidance of doubt, and without limiting the conversion rights of any Holder, each Holder shall remain entitled to convert the Accrued
Value of this Preferred Stock (or any part hereof) during the twenty (20)-day period commencing on the date of such notice through the
effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 8. Redemption.
(a) Redemption
by the Corporation. Subject to the provisions of this Section 8 and unless prohibited by applicable law governing distributions
to stockholders, the Corporation may, in its sole discretion, redeem all or a portion of the outstanding shares of Preferred Stock:
(i) on
or after the Closing but prior to the first anniversary of the Closing, at a redemption price per share equal to 150% of the Accrued Value;
(ii) on
or after the first anniversary of the Closing but prior to the second anniversary of the Closing, at a redemption price per share equal
to 140% of the Accrued Value;
(iii) on
or after the second anniversary of the Closing but prior to the third anniversary of the Closing, at a redemption price per share equal
to 130% of the Accrued Value;
(iv) on
or after the third anniversary of the Closing but prior to the fourth anniversary of the Closing, at a redemption price per share equal
to 120% of the Accrued Value;
(v) on
or after the fourth anniversary of the Closing but prior to the fifth anniversary of the Closing, at a redemption price per share equal
to 110% of the Accrued Value; and
(vi) on
or after the fifth anniversary of the Closing, at a redemption price per share equal to 100% of the Accrued Value.
If, on the date of
such redemption, applicable law governing distributions to stockholders prevents the Corporation from redeeming all shares of Preferred
Stock scheduled to be redeemed, the Corporation shall be entitled to ratably redeem the maximum number of shares that it may redeem consistent
with such law and any Preferred Stock not so redeemed shall remain outstanding. The Corporation shall provide written notice (the “Corporation
Notice”) by e-mail and first class mail postage prepaid, to each Holder of record (determined at the close of business on the
Business Day next preceding the day on which the Corporation Notice is given) of the Preferred Stock to be redeemed, at the address last
shown on the records of the Corporation for such Holder, notifying such Holder of the redemption to be effected, specifying the number
of shares to be redeemed from such Holder, specifying the date of such redemption, the redemption price, the place at which payment may
be obtained and calling upon such Holder to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate
or certificates representing the shares to be redeemed; provided that the date of redemption shall be not less than 15 days from
the date of the Corporation Notice. Except as otherwise provided herein, on or after the applicable date of redemption, each Holder to
be redeemed shall surrender to the Corporation the certificate or certificates representing such shares, in the manner and at the place
designated in the Corporation Notice, and thereupon the price of redemption of such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be cancelled. In the
event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed
shares. Notwithstanding anything herein to the contrary, each Holder shall remain entitled to convert the Accrued Value of its Preferred
Stock (or any part thereof) during the 15-day period commencing on the date of the Corporation Notice through the applicable date of redemption.
(b) Redemption
by the Holders.
(i) Unless
prohibited by applicable law governing distribution to stockholders, shares of Preferred Stock shall be redeemed by the Corporation at
a purchase price equal to the Accrued Value (the “Redemption Price”), if at any time and from time to time after the
fifth (5th) anniversary of the Closing, the Required Holders deliver to the Corporation a written notice demanding redemption
of all shares of Preferred Stock (the “Redemption Request”). The 20th day after the date of the Corporation Notice
shall be referred to as the “Redemption Date.” Upon receipt of a Redemption Request, the Corporation shall apply all
of its assets to any such redemption, and to no other corporate purpose, until the Redemption Price has been paid in full, except to the
extent prohibited by Delaware law governing distributions to stockholders.
(ii) Following
receipt of a Redemption Request, the Corporation shall send written notice of the mandatory redemption (the “Redemption Notice”)
to each Holder of record of Preferred Stock not less than 15 days prior to the Redemption Date. The Redemption Notice shall state:
| a. | the number of shares of Preferred Stock held by the Holder that the Corporation shall redeem on the Redemption Date; |
| b. | the Redemption Date and the Redemption Price; |
| c. | the date upon which the Holder’s right to convert such shares terminates; and |
| d. | for Holders of shares in certificated form, that the Holder is to surrender to the Corporation, in the manner and at the place designated,
his, her or its certificate or certificates representing the shares of Preferred Stock to be redeemed. |
If the Corporation
receives, on or prior to the 10th day after the date of delivery of the Redemption Notice to a Holder of Preferred Stock, written notice
from a Holder of greater than 10% of the outstanding shares of Preferred Stock that such Holder elects to be excluded from the redemption
provided in this Section 8(b), then the shares of Preferred Stock registered on the books of the Corporation in the name of such
Holder at the time of the Corporation’s receipt of such notice shall thereafter be “Excluded Shares.” Excluded
Shares shall not be redeemed or redeemable pursuant to this Section 8(b), whether on such Redemption Date or thereafter.
(iii) On
the Redemption Date, the Corporation shall redeem the Preferred Stock owned by each Holder; provided, however, that Excluded
Shares shall not be redeemed. If on the Redemption Date Delaware law governing distributions to stockholders prevents the Corporation
from redeeming all shares of Preferred Stock to be redeemed, the Corporation shall ratably redeem the maximum number of shares that it
may redeem consistent with such law, and shall redeem the remaining shares as soon as it may lawfully do so under such law. In the event
that any portion of the Redemption Price has not been paid within five (5) Business Days following the Redemption Date, interest on such
unpaid portion of the Redemption Price shall accrue thereon until such amount is paid in full at a rate equal to the lesser of (i) 24.0%
per annum and (ii) the maximum rate permitted under applicable law. Such interest shall be paid by the Corporation, in its sole discretion,
(i) in cash or (ii) subject to the satisfaction of the Equity Conditions at the time of payment, shares of Common Stock.
(c) Rights
Subsequent to Redemption. Upon the redemption of shares of Preferred Stock pursuant to Section 8(a) or Section 8(b),
all rights with respect to such shares of Preferred Stock shall immediately terminate, except with respect to the right of the Holders
to receive the applicable redemption price with respect to such shares of Preferred Stock in accordance with Section 8(a)
or Section 8(b), as applicable.
Section 9. Miscellaneous.
(a) Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice
of Conversion, shall be in writing and delivered personally, by e-mail, or sent by nationally recognized overnight courier service, addressed
to the Corporation, at the address set forth above the address or email address most recently provided to Holders by the Corporation for
purposes of notice hereunder Attention: General Counsel, 100, W. Airport Road, Stillwater, OK 74075, e-mail address legal@usare.com, or
such other e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance
with this Section 9. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder
shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each
Holder at the e-mail address or address of such Holder appearing on the books of the Corporation, or if no such facsimile number, e-mail
address or address appears on the books of the Corporation, at the principal place of business of such Holder, as set forth in the Purchase
Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time
of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail at the e-mail address set
forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if
such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day
or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by
U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
(b) Absolute
Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation
of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the shares
of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.
(c) Lost
or Mutilated Preferred Stock Certificate. If a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen or destroyed,
the Corporation shall issue or cause to be issued, in exchange and substitution for and upon cancellation of a mutilated certificate,
or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Preferred Stock so mutilated,
lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership
hereof reasonably satisfactory to the Corporation (which shall not include the posting of any bond). The applicant for a new certificate
under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance
of such replacement certificate.
(d) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall
be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles
of conflict of laws thereof. All legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated
by this Certificate of Designation (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders,
employees or agents) shall be commenced in the state and federal courts sitting in the City of Wilmington, Delaware, County of New Castle
(the “Delaware Courts”). The Corporation and each Holder hereby irrevocably submits to the exclusive jurisdiction of
the Delaware Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such Delaware
Courts, or such Delaware Courts are improper or inconvenient venue for such proceeding. The Corporation and each Holder hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this Certificate of Designation and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable
law. The Corporation and each Holder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby.
If the Corporation or any Holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation,
then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other
costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
(e) Waiver.
Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed
to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver
by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation
on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist
upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation
or a Holder must be in writing.
(f) Severability.
If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation
shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to
all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the
applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate
of interest permitted under applicable law.
(g) Next
Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day.
(h) Headings.
The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed
to limit or affect any of the provisions hereof.
(i) Status
of Converted or Redeemed Preferred Stock. Shares of Preferred Stock may only be issued pursuant to the Purchase Agreement. If any
shares of Preferred Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume the status of authorized
but unissued shares of preferred stock and shall no longer be designated as 12.0% Series A Cumulative Convertible Preferred Stock.
(j) Tax
Withholding. The Corporation agrees that, provided that each Holder delivers to the Corporation a properly executed IRS Form W-9 or
other certification satisfactory to the Corporation certifying as to such Holder’s status (or the status of such Holder’s
beneficial owner(s)) as a United States person (within the meaning of Section 7701(a)(30) of the Code) and such Holder’s (or such
beneficial owners’) eligibility for complete exemption from backup withholding (“U.S. Person Certification”),
under current law the Corporation (including any paying agent of the Corporation) shall not be required to, and shall not, withhold on
any payments or deemed payments to any such Holder. In the event that any Holder fails to deliver to the Corporation such properly
executed U.S. Person Certification, the Corporation reasonably believes that a previously delivered U.S. Person Certification is no longer
accurate and/or valid, or there is a change in law that affects the withholding obligations of the Corporation, the Corporation and its
paying agent shall be entitled to withhold taxes on all payments made to the relevant Holder in the form of cash or otherwise treated,
in the Corporation's reasonable discretion, as a dividend for U.S. federal tax purposes or to request that the relevant Holder promptly
pay the Corporation in cash any amounts required to satisfy any withholding tax obligations, in each case, to the extent the Corporation
or its paying agent determines in good faith it is required to deduct and withhold tax on payments to the relevant Holder under applicable
law; provided, that the Corporation shall use commercially reasonable efforts to notify the relevant Holder of any required withholding
tax reasonably in advance of the date of the relevant payment. In the event that the Corporation
does not have sufficient cash with respect to any Holder from withholding on cash payments otherwise payable to such Holder and cash paid
to the Corporation by such Holder to the Corporation pursuant to the immediately preceding sentence, the Corporation and its paying agent
shall be entitled to withhold taxes on deemed payments, including distributions of additional Preferred Stock in lieu of cash and constructive
distributions on the Preferred Stock to the extent required by law, and the Corporation and its paying agent shall be entitled to satisfy
any required withholding tax on non-cash payments (including deemed payments) through a sale of a portion of the Preferred Stock received
as a dividend or from cash dividends or sales proceeds subsequently paid or credited on the Preferred Stock.
(k) Tax
Treatment. Absent a change in law, Internal Revenue Service practice or a contrary determination (as defined in Section 1313(a) of
the Internal Revenue Code, as amended (the “Code”)), each holder of Preferred Stock and the Corporation shall not treat
the Preferred Stock (based on their terms as set forth in this Certificate of Designation) as “preferred stock” within the
meaning of Section 305 of the Code and Treasury Regulation Section 1.305-5 for United States federal income tax and withholding tax purposes
and shall not take any position inconsistent with such treatment.
*********************
IN WITNESS WHEREOF, this Certificate of Designation is
executed on behalf of the Corporation by its Chief Executive Officer this [●] day of [●].
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USA RARE EARTH, INC. |
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By: |
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Name: |
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Title: |
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ANNEX A
NOTICE OF CONVERSION
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF 12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK)
The undersigned hereby elects to convert the number
of shares of 12.0% Series A Cumulative Convertible Preferred Stock, par value $0.0001 per share (the “Preferred Stock”),
indicated below into shares of common stock, par value $0.0001 per share (the “Common Stock”), of USA Rare Earth, Inc.,
a Delaware corporation (the “Corporation”), according to the conditions hereof, as of the date written below. If shares
of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto and is delivering herewith such certificates and opinions as may be required by the Corporation in accordance with
the Purchase Agreement. No fee will be charged to the Holders for any conversion, except for any such transfer taxes.
Conversion calculations:
Date to Effect Conversion:
Number of shares of Preferred Stock owned prior to Conversion:
Number of shares of Preferred Stock to be Converted:
Accrued Value of shares of Preferred Stock to be Converted:
Number of shares of Common Stock to be Issued:
Applicable Conversion Price:
Number of shares of Preferred Stock subsequent to Conversion:
Address for Delivery:
or
DWAC Instructions:
Broker no:
Account no:
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[HOLDER] |
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By: |
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Name: |
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Title: |
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Exhibit A
Exhibit E – Form of Domesticated Purchaser
Series A Investor Warrants
Final Form
[NEITHER THIS SECURITY NOR THE SECURITIES FOR
WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.]1
COMMON STOCK PURCHASE WARRANT
USA
Rare Earth, Inc.
|
Warrant Shares: [_______] |
Initial Exercise Date: [_______], 202[●] |
THIS COMMON STOCK PURCHASE WARRANT
(the “Warrant”) certifies that, for value received, [_____________] or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on [_____], 202[●]
(the “Termination Date”) but not thereafter, to subscribe for and purchase from USA Rare Earth, Inc., a Delaware corporation
(the “Company”), up to [______] shares (as subject to adjustment hereunder, the “Warrant Shares”)
of common stock, par value $[0.0001] per share, of the Company (the “Common Stock”). The purchase price of one share
of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions. Capitalized
terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement (the “Purchase
Agreement”), dated as of [●], by and among the Company and the purchasers signatory thereto.
Section 2. Exercise.
| (a) | Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in
whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the
Company (or such other office or agency that the Company may designate by notice in writing to the registered Holder at the address of
the Holder appearing on the books of the Company), as applicable, of a duly executed facsimile copy or PDF copy submitted by e-mail (or
e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Not later than
the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date
of exercise as aforesaid, the Holder shall deliver to the Company the aggregate Exercise Price for the shares specified in the applicable
Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified
in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required,
nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder
has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall
surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise
is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal
to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant
Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business
Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of
the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available
for purchase hereunder at any given time may be less than the amount stated on the face hereof. |
| 1 | NTD: To be included on Warrants issued for new money on the
Closing Date, but not on Warrants issued in exchange for USARE Class A Preferred Investor Warrants unless required by applicable securities
law. |
| (b) | Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $12.00,
subject to adjustment hereunder (the “Exercise Price”). Notwithstanding the foregoing, at any time that the Conversion
Price (as defined in the Certificate of Designation) adjusts (or is otherwise lowered) pursuant to the terms of the Certificate of Designation
(each, an “Adjustment Time”, and such adjusted Conversion Price related thereto, each, an “Adjusted Conversion
Price”), if the Exercise Price then in effect immediately following such Adjustment Time is greater than such related Adjusted
Conversion Price, immediately following such Adjustment Time the Exercise Price then in effect shall automatically be lowered by an amount
equal to the difference between the Conversion Price immediately prior to the Adjustment Time and the Adjusted Conversion Price immediately
after the Adjustment Time. Simultaneously with any adjustment to the Exercise Price pursuant to this Section 2(b), the number of
Warrant Shares that may be purchased upon exercise of this Warrant shall be increased proportionately, so that after such adjustment,
the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise Price
in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein). |
| (c) | Cashless Exercise. If at any time after the six (6) month anniversary of the Closing Date, there
is no effective registration statement registering, or the prospectus contained therein is not available for the resale of the Warrant
Shares by the Holder, then this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing ((A-B) multiplied
by (X)) by (A), where: |
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(A) = |
as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
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(B) = |
the Exercise Price of this Warrant, as adjusted hereunder; and |
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|
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(X) = |
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant
Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this
Section 2(c).
“Bid Price” means,
for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted
on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market
on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time)
to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock
for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for
trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other
cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers
of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which
shall be paid by the Company.
“VWAP” means, for
any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on
a Trading Market, the daily volume weighted average price of the Common Stock for the 20 Trading Day preceding such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume
weighted average price of the Common Stock for the 20 Trading Days preceding such date (or the nearest preceding date) on OTCQB or OTCQX
as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are
then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the average
of the highest closing bid price per share and the lowest closing ask price per share of the Common Stock for the 20 Trading Days preceding
such date, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected
in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
Notwithstanding anything herein to the
contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c).
| (d) | Mechanics of Exercise. |
| (i) | Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased
hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s
balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system if the Company is then a participant
in such system and there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by the Holder, and otherwise by physical delivery of a certificate, (or reasonable evidence of issuance by book entry of ownership
of the Warrant Shares) registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the
date that is the later of (i) the Standard Settlement Period after the delivery to the Company of the Notice of Exercise, and (ii) one
(1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”);
provided, however, in any event, the Company shall not be obligated to deliver Warrant Shares until it has
received the aggregate Exercise Price therefor. Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate
purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective
of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the
case of a cashless exercise) is received no later than the number of Trading Days comprising the Standard Settlement Period following
delivery of the Notice of Exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long
as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock
as in effect on the date of delivery of the Notice of Exercise. |
| (ii) | Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the
Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares,
deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this
Warrant, which new Warrant shall in all other respects be identical with this Warrant. |
| (iii) | Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the
Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date (subject to receipt of the aggregate Exercise Price
for the applicable exercise (other than in the case of a cashless exercise)), then the Holder will have the right to rescind such exercise
prior to the delivery of the Warrant Shares. |
| (iv) | No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall
be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon
such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to
such fraction multiplied by the Exercise Price or round up to the next whole share. |
| (v) | Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder
for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses
shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed
by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other
than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly
executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all
fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares pursuant to the terms of this Warrant. |
| (vi) | Closing of Books. The Company will not close its stockholder books or records in any manner intended
to prevent the timely exercise of this Warrant, pursuant to the terms hereof. |
| (e) | Holder’s Exercise Limitations. The Holder may notify the Company in writing in the event
it elects to be subject to the provisions contained in this Section 2(e); however, the Holder shall not be subject to this Section
2(e) unless he, she or it makes such election. If the election is made, the Company shall not effect any exercise of this Warrant,
and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent
that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with
the Holder’s Affiliates, and any Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such
Persons, “Attribution Parties”)) would beneficially own in excess of 4.9%, 9.9%, 19.9% (or such other amount as the
Holder may specify) (the “Beneficial Ownership Limitation”). For purposes of the foregoing sentence, the number of
shares of Common Stock beneficially owned by the Holder, its Affiliates and Attribution Parties shall include the number of shares of
Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number
of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially
owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation
on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the
Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act
and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation
contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities
owned by the Holder together with any Affiliates and Attribution Parties) and, of which portion of this Warrant is exercisable up to the
Beneficial Ownership Limitation shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed
to be the Holder’s good faith determination of whether this Warrant is exercisable (in relation to other securities owned by the
Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case, subject
to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination
and shall have no liability for exercises of this Warrant that are not in compliance with the Beneficial Ownership Limitation. In addition,
a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act
and the rules and regulations promulgated thereunder and the Company shall have no obligation to verify or confirm the accuracy of such
determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation.
For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number
of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission,
as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer
Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall
within two (2) Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities
of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number
of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease
the Beneficial Ownership Limitation applicable to the Holder, provided, however, that any such increase in the Beneficial Ownership Limitation
will not be effective until the sixty-first (61st) day after such notice is delivered to the Company. The provisions of this paragraph
shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct
this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained
in this paragraph shall apply to a successor holder of this Warrant. |
Section 3. Certain
Adjustments.
| (a) | Stock Dividends and Splits. If the Company at any time while this Warrant is outstanding: (i) pays
a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent
securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the
Company upon exercise of this Warrant or any cash distributions), (ii) subdivides outstanding shares of Common Stock into a larger number
of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares,
or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise
Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares,
if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding
immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that
the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become
effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and
shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification. |
| (b) | VWAP Reset. If on the twenty-first trading day following the date that is six months after the
Closing Date, the VWAP (as defined by Bloomberg) of the Common Stock for the twenty trading period commencing on the date that is six
months after the Closing Date (the “Measurement Price”) is less than the Exercise Price then in effect, then the Exercise
Price then in effect shall be reduced to an amount equal to the greater of (i) the Measurement Price and (ii) $7.50. |
| (c) | Adjustment Upon Issuance of Common Stock. If and whenever on or after the Closing Date, the Company
issues or sells, or in accordance with this Section 3(c) is deemed to have issued or sold, any shares of Common Stock (including
the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares
of Common Stock deemed to have been issued or sold by the Company in connection with any Exempt Issuance) for a consideration per share
(the “New Issuance Price”) less than the lesser of (i) $10.00 and (ii) the Exercise Price then in effect
(such price thresholds described in clauses (i) and (ii), collectively, the “Applicable Price”, and each such issue,
sale or deemed issuance or sale, a “Dilutive Issuance”), in issuances and sales conducted for the purpose of raising
capital by the Company where the aggregate amount of consideration received by the Company, together with all prior issuances and sales
conducted for the purpose of raising capital by the Company on or after the Closing Date that were excluded from this Section 3(c)
by this clause, exceeds $500,000, then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to
an amount equal to the New Issuance Price. |
As used in this Warrant, the following
terms shall have the following meanings:
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(I) |
“Common Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock, and any securities of the Company that when paired with one or more other securities of the Company or another entity entitles the holder thereof to receive, Common Stock. |
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(II) |
“Convertible Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock and any securities of the Company that when paired with one or more other securities of the Company or another entity entitles the holder thereof to receive, Common Stock. |
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(III) |
“Exempt Issuance” means the issuance of (a) any securities of the Company to employees, officers or directors, consultants, contractors, vendors or other agents of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued pursuant to the Purchase Agreement or the Business Combination Agreement and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Warrant, provided that such securities have not been amended since the date of this Warrant to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (c) the Underlying Shares, (d) securities issued pursuant to any merger, acquisition or strategic transaction or partnership approved by a majority of the directors of the Company, provided that (i) such securities are issued as “restricted securities” (as defined in Rule 144) or are issued pursuant to an effective registration statement pursuant to the Securities Act and (ii) any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (e) any securities issued by the Company pursuant to any legal settlement or similar arrangement agreed or entered into by the Company, provided that, in the aggregate, not more than [●]2 shares of Common Stock are issued or deemed issued or issuable upon conversion, settlement, exercise or exchange of any such securities that are Options or Convertible Securities, but any such Exempt Issuance shall not include a transaction in which the Company is issuing securities (i) primarily for the purpose of raising capital, including an at-the-market offering, and (ii) to an entity whose primary business is investing in securities. |
| 2 | NTD: To be 1,000,000 multiplied by the Exchange Ratio |
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(IV) |
“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities; and |
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(V) |
“Option Value” means the value of an Option based on the Black-Scholes Option Pricing model obtained from the “OV” function on Bloomberg determined as of (A) the Trading Day prior to the public announcement of the issuance of the applicable Option, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, for pricing purposes and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of the applicable Option as of the applicable date of determination, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of (A) the Trading Day immediately following the public announcement of the applicable Option if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iii) the underlying price per share used in such calculation shall be the highest weighted average price of the Common Stock during the period beginning on the Trading Day prior to the execution of definitive documentation relating to the issuance of the applicable Option and ending on (A) the Trading Day immediately following the public announcement of such issuance, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iv) a zero cost of borrow and (v) a 360 day annualization factor. |
For purposes of determining the adjusted
Exercise Price under this Section 3(c), the following shall be applicable:
| (i) | Options and Convertible Securities. The consideration per share received by the Company for Common
Stock deemed to have been issued pursuant to Section 3(c)(ii), relating to Options and Convertible Securities, shall be determined
by dividing: (x) the total amount, if any, received or receivable by the Company as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such
Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise
of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by (y) the maximum number of
shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent
adjustment of such number) deemed to be issued pursuant to Section 3(c)(ii) upon the issuance of such Options or Convertible Securities. |
| (ii) | Deemed Issuance of Options and Convertible Securities. If the Company at any time or from time
to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth
in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but
without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options
or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed
to be outstanding and to have been issued as of the time of such issue or, in case such a record date shall have been fixed, as of the
close of business on such record date. |
| (iii) | Change in Option Price. If, after the Initial Exercise Date, the purchase price provided for in
any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities,
or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for Common Stock increases or decreases
at any time, (other than (x) proportional changes in conversion or exercise prices, as applicable, in connection with an event referred
to in Section 3(a) above and (y) automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option
or Convertible Security which are not more favorable to the holder thereof than the anti-dilution and similar provisions set forth herein),
the Exercise Price in effect at the time of such increase or decrease shall be adjusted to the Exercise Price, which would have been in
effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration
or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section
3(c)(iii), if the terms of any Option or Convertible Security that was outstanding as of the Initial Exercise Date are increased or
decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common
Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase
or decrease. No adjustment pursuant to this Section 3(c) shall be made if such adjustment would result in an increase of the Exercise
Price then in effect. |
| (iv) | Calculation of Consideration Received. In case any Option is issued in connection with the issue
or sale of other securities of the Company, together comprising one integrated transaction, (x) the Options will be deemed to have been
issued for the Option Value of such Options and (y) the other securities issued or sold in such integrated transaction shall be deemed
to have been issued or sold for the difference of (I) the aggregate consideration received by the Company less any consideration paid
or payable by the Company pursuant to the terms of such other securities of the Company, less (II) the Option Value. If any shares of
Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration other
than cash received therefor will be deemed to be the net amount received by the Company therefor. If any shares of Common Stock, Options
or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company
will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the
amount of consideration received by the Company will be the closing sale price of such publicly traded securities on the date of receipt.
If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with
any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such
portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible
Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly
by the Company and a majority in interest of the Securities then outstanding. If such parties are unable to reach agreement within ten
(10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration
will be determined within five (5) Business Days after the tenth (10th) day following the Valuation Event by an independent, reputable
appraiser jointly selected by the Company and a majority in interest of the Securities then outstanding. The determination of such appraiser
shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company. |
| (v) | Record Date. If the Company takes a record of the holders
of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common
Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities,
then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued
or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription
or purchase, as the case may be. |
| (vi) | Expiration or Termination of Options or Convertible Securities.
Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Securities (or portion thereof)
which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Exercise Price pursuant to
the terms of Section 3(b), the Exercise Price shall be readjusted to such Conversion Price as would have obtained had such Option
or Convertible Securities (or portion thereof) never been issued. |
| (d) | Subsequent Rights Offerings. In addition to any adjustments
pursuant to Section 3(a) above, if at any time after the Initial Exercise Date the Company grants, issues or sells any Common
Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of
shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable
to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares
of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without
limitation, any applicable Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent
that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding any applicable Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership
of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held
in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding any applicable Beneficial
Ownership Limitation). To the extent that the issue price of such Purchase Rights would result in an adjustment of the Conversion Price
pursuant to Section 7(c), such adjustment shall not occur to the extent the Holders were granted the right to acquire such Purchase Rights
on the applicable terms. |
| (e) | Pro Rata Distributions. During such time after the
Initial Exercise Date as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its
assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without
limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete
exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, any applicable Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the
Holder exceeding any applicable Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution
to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the
portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would
not result in the Holder exceeding any applicable Beneficial Ownership Limitation). |
| (f) | Fundamental Transaction. If, at any time after the Initial Exercise Date while this Warrant is
outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company
with or into another Person, (ii) the Company (and all of its subsidiaries, taken as a whole), directly or indirectly, effects any sale,
lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in3 one or a series of
related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another
Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities,
cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other
than as a result of a stock split, combination or reclassification of shares of Common Stock covered by Section 3(a)), or (v) the
Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another
Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock (not including
any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons
making or party to, such stock or share purchase agreement or other business combination) or 50% or more of the voting power of the common
equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder
shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise
of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving
corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental
Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental
Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise,
the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of
Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion
the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components
of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received
in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise
of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction,
the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with,
or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable
Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value
(as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction;
provided, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction,
such holders of Common Stock will be deemed to have received common stock or ordinary shares of the Successor Entity (which Successor
Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value”
means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg
determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the
applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater
of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as
of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying
price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash,
if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP
during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction (or the
consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant
to this Section 3(f), (D) a remaining option time equal to the time between the date of the public announcement of the applicable
Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by
wire transfer of immediately available funds (or such other consideration) within the later of (i) five Business Days of the Holder’s
election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations
of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(f) pursuant
to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the Exercise Price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and
be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction
Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power
of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the
same effect as if such Successor Entity had been named as the Company herein. |
| (g) | Calculations. All calculations under this Section
3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3,
the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares
of Common Stock (excluding treasury shares, if any) issued and outstanding. |
| (h) | Number of Warrant Shares. Simultaneously with any
adjustment to the Exercise Price pursuant to this Section 3(a), the number of Warrant Shares that may be purchased upon exercise
of this Warrant shall be increased or decreased proportionately so that after such adjustment the aggregate Exercise Price payable hereunder
for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment
(without regard to any limitations on exercise contained herein). |
| (i) | Adjustment to Exercise Price. Whenever the Exercise
Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile or
email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and
setting forth a brief statement of the facts requiring such adjustment. |
| (ii) | Notice to Allow Exercise by Holder. If (A) the Company
shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring
cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock
rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders
of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the
Company (or any of its subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share
exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary
or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be
delivered by facsimile or email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register
of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record
is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record
shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided, that, notwithstanding the foregoing, any notice delivery requirement
hereunder shall also be deemed satisfied by filing or furnishing such communication with the Commission via the EDGAR system; provided,
further, that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of
the corporate action required to be specified in such notice. To the extent that any notice provided to the Holder in accordance with
the terms of this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K, unless determined by
the Company that such filing would be harmful to the Company at such time, in which case the Company shall file such 8-K as soon as is
reasonably practicable in its discretion. The Holder shall remain entitled to exercise this Warrant during the period commencing on the
date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein. |
| (j) | Voluntary Adjustment By Company. Subject to the rules
and regulations of the Trading Market, the Company may at any time during the term of this Warrant, subject to the prior written consent
of the Holder, reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors
of the Company. |
Section 4. Transfer
of Warrant.
| (a) | Transferability. Subject to compliance with any applicable securities laws and the conditions set
forth in Section 4(d) hereof and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights
hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued. |
| (b) | New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are
to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which
may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant
or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the
Initial Exercise Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto. |
| (c) | Warrant Register. The Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company
may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary. |
| (d) | Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any
transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement
under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale
restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such
transfer, that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase
Agreement. |
| (e) | Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that
it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account
and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or
any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act. |
Section 5. Miscellaneous.
| (a) | No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i),
except as expressly set forth in Section 3. |
| (b) | Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate
relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which,
in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate,
if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in
lieu of such Warrant or stock certificate. |
| (c) | Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or
the expiration of any right required or granted herein shall not be a Business Day, then, such action may be taken or such right may be
exercised on the next succeeding Business Day. |
| (i) | The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized
and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase
rights under this Warrant (without regard to any limitation on exercise set forth herein and assuming an Exercise Price equal to the lower
of (i) $[5.00] and (ii) the Exercise Price then in effect). The Company further covenants that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase
rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may
be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon
which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase
rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant
Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges
created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such
issue). |
| (ii) | Except and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its Certificate of Incorporation (or any Certificate of Designation thereto) or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this
Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant
Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action
as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares
upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under
this Warrant. |
| (iii) | Before taking any action which would result in an adjustment in the number of Warrant Shares for which
this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof. |
| (e) | Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be determined in accordance with the provisions of the Purchase Agreement. |
| (f) | Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this
Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and
federal securities laws. |
| (g) | Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder
on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without
limiting any other provision of this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply with any
provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall
be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate
proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers
or remedies hereunder. |
| (h) | Notices. Any notice, request or other document required or permitted to be given or delivered to
the Holder by the Company shall be delivered in accordance with the notice provisions of the Purchase Agreement. |
| (i) | Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder
to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise
to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company. |
| (j) | Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees
to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate. |
| (k) | Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and
obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and
the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time
to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares. |
| (l) | Amendment. This Warrant may be modified, waived or amended or the provisions hereof waived with
the written consent of the Company and the Holder. |
| (m) | Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Warrant. |
| (n) | Headings. The headings used in this Warrant are for the convenience of reference only and shall
not, for any purpose, be deemed a part of this Warrant. |
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have caused
this Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.
| [USA RARE EARTH, INC.] |
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IN WITNESS WHEREOF, the undersigned have caused
this Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser:
Signature of Authorized Signatory of Purchaser:
Name of Authorized Signatory:
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
Subscription Amount:
Shares of Preferred Stock:
Warrant Shares:
EIN Number:
EXHIBIT A
NOTICE OF EXERCISE
(1) The undersigned hereby elects
to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders
herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form
of (check applicable box):
☐
in lawful money of the United States; or
☐
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please issue said Warrant
Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following
DWAC Account Number:
(4) Accredited Investor.
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
| Name of Investing Entity:_______________________________________________________________________ |
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| Signature of Authorized Signatory of Investing Entity:________________________________________________ |
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| Name of Authorized Signatory:_________________________________________________________________ _ |
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| Title of Authorized Signatory:___________________________________________________________________ |
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| Date:______________________________________________________________________________________ |
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
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Exhibit F – Form of A&R Registration
Rights Agreement
FORM OF
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this “Agreement”), dated as of [●], 2024, is made and entered into by and among USA Rare Earth,
Inc. a Delaware corporation (formerly known as Inflection Point Acquisition Corp. II, a Cayman Islands exempted company limited by shares,
prior to the Domestication (as defined herein)) (the “Company”), Cantor Fitzgerald & Co., a New York general
partnership (“Cantor”), Inflection Point Holdings II LLC, a Delaware limited liability company (the “Sponsor”),
the members of the Sponsor identified on the signature page hereto under “Other Sponsor Holder” (such members, together with
the Sponsor, the “Sponsor Holders”) and each of the undersigned parties listed on the signature page hereto
under “USARE Holders” (the “USARE Holders” and each such party, together with the Sponsor, the Sponsor
Holders, Cantor and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 of this Agreement,
a “Holder” and collectively the “Holders”).
RECITALS
WHEREAS, the Company, Cantor, and the Sponsor
are party to that certain Registration Rights Agreement, dated as of May 24, 2023 (the “Original RRA”);
WHEREAS, the Company is party to that certain
Business Combination Agreement, dated as of August 21, 2024 (as the same may be amended, restated, amended and restated, supplemented
or otherwise modified from time to time, the “Business Combination Agreement” and the transactions contemplated
thereby, the “Business Combination”), by and between the Company, USA Rare Earth, LLC, a Delaware limited liability
company (“Legacy Rare Earth”) and IPXX Merger Sub, LLC, a Delaware limited liability company;
WHEREAS, prior to the date hereof and subject
to the conditions of the Business Combination Agreement, IPXX migrated to and domesticated as a Delaware corporation in accordance with
Section 388 of the Delaware General Corporation Law, as amended, and the Cayman Islands Companies Law (As Revised) (the “Domestication”),
and as part of the Domestication, (i) each Class A ordinary share, par value $0.0001 per share, of the Company converted into one share
of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) and (ii) each warrant to purchase
one Class A ordinary share of the Company converted into one warrant to purchase one share of Common Stock (the “Warrants”);
WHEREAS, pursuant to the Business Combination
Agreement, on the date hereof, the holders Legacy Rare Earth’s Class A Convertible Preferred Units received shares of 12% Series
A Cumulative Convertible Preferred Common Stock, par value $0.0001 per share, of the Company (the “Series A Preferred Stock”)
in exchange for such units;
WHEREAS, pursuant to the Business Combination
Agreement, on the date hereof, the holders of Legacy Rare Earth’s Class A Preferred Investor Warrants received warrants to purchase
Common Stock (the “Series A Investor Warrants”) in exchange for such Class A Preferred Investor Warrants;
WHEREAS, pursuant to the transactions contemplated
by the Business Combination Agreement and subject to the terms and conditions set forth therein, the USARE Holders and the other pre-Business
Combination security holders of Legacy Rare Earth received an aggregate of [●] shares of Common Stock;
WHEREAS, on the date hereof, the Company
issued an additional [●] shares of Series A Preferred Stock and additional Series A Investor Warrants to purchase an aggregate of
[●] shares of Common Stock (subject to adjustment) to certain investors pursuant to that certain Securities Purchase Agreement,
dated as of [●] 2024, by and among the Company and such investors or other securities purchase agreements regarding the Series A
Preferred Stock and Series A Investor Warrants;
WHEREAS, pursuant to Section 5.5 of the
Original RRA, the provisions, covenants and conditions set forth therein may be amended or modified upon the written consent of the Company
and the Holders (as defined in the Original RRA) (the “Original Holders”) of at least a majority in interest
of the Registrable Securities (as defined in the Original RRA) (the “Original Registrable Securities”) at the
time in question, and the Sponsor Holders party hereto are Original Holders of at least a majority in interest of the Original Registrable
Securities as of the date hereof; and
WHEREAS, in connection with the consummation
of the transactions described above, the Company and the Original Holders desire to amend and restate the Original RRA in its entirety
as set forth herein, and the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the
Holders certain registration rights with respect to the Registrable Securities (as defined below) on the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the
representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions.
The terms defined in this ARTICLE 1 shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Additional Holder”
shall have the meaning given in Section 5.11.
“Additional Holder
Common Stock” shall have the meaning given in Section 5.11.
“Adverse Disclosure”
shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive
Officer or Chief Financial Officer of the Company or the Board, in each case, after consultation with counsel to the Company, (i) would
be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not
to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under
which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being
filed, declared effective or used, as the case may be, and (iii) the Company has a bona fide business purpose for not making such information
public.
“Agreement”
shall have the meaning given in the Preamble hereto.
“Board”
shall mean the board of directors of the Company.
“Business Combination
Agreement” shall have the meaning given in the Recitals hereto.
“Business Day”
means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law
to close.
“Cantor”
shall have the meaning given in the Preamble hereto.
“Closing”
shall have the meaning given in the Business Combination Agreement.
“Closing Date”
shall have the meaning given in the Business Combination Agreement.
“Commission”
shall mean the U.S. Securities and Exchange Commission.
“Common Stock”
shall have the meaning given in the Recitals hereto.
“Company”
shall have the meaning given in the Preamble hereto and includes the Company’s successors by recapitalization, merger, consolidation,
spin-off, reorganization or similar transaction.
“Competing Registration
Rights” shall have the meaning given in Section 5.8.
“Demanding Holder”
shall have the meaning given in Section 2.1.4.
“Earnout Shares”
shall have the meaning given in the Business Combination Agreement.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Floor Price”
shall mean $1.00.
“Form S-1 Shelf”
shall have the meaning given in Section 2.1.1.
“Form S-3 Shelf”
shall have the meaning given in Section 2.1.1.
“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.
“Holder Information”
shall have the meaning given in Section 4.1.2.
“Holders”
shall have the meaning given in the Preamble.
“Joinder”
shall have the meaning given in Section 5.10.
“Law”
shall mean 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.
“Legacy Rare Earth”
shall have the meaning given in the Recitals hereto.
“Legal Proceeding”
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.
“Lock-Up Agreements”
means the Company’s bylaws as may be in effect from time to time and the Sponsor Holder Lock-Up Agreement, collectively.
“Lock-Up Period”
shall mean (a) with respect to the Sponsor Holder and their respective Permitted Transferees, the lock-up period specified with respect
to a party in the Sponsor Holder Lock-Up Agreement and (b) with respect to the USARE Holders and their respective Permitted Transferees,
the lock-up period specified with respect to a Person in the Company’s bylaws as may be in effect from time to time.
“Maximum Number
of Securities” shall have the meaning given in Section 2.1.5.
“Minimum Takedown
Threshold” shall have the meaning given in Section 2.1.4.
“Misstatement”
shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement
or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light
of the circumstances under which they were made) not misleading.
“Original Registrable
Securities” shall have the meaning given in the Recitals hereto.
“Original RRA”
shall have the meaning given in the Recitals hereto.
“Other Coordinated
Offering” shall have the meaning given in Section 2.4.1.
“Permitted Transferees”
means persons to whom a holder of Registrable Securities is permitted to transfer such Registrable Securities prior to the expiration
of the applicable Lock-Up Period pursuant to the applicable Lock-Up Agreement.
“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.
“Piggyback Registration”
shall have the meaning given in Section 2.2.1.
“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable Security”
shall mean: (i) any outstanding shares of Common Stock held by a Holder following the Closing that are issued in connection with the transactions
contemplated by the Business Combination Agreement, including, for the avoidance of doubt, any shares of Common Stock issued in connection
with the Domestication (other than the Earnout Shares); (ii) any shares of Common Stock that may be acquired by Holders upon the exercise,
conversion or redemption of any other security of the Company or other right to acquire Common Stock held by a Holder following the Closing
that are issued in connection with the transactions contemplated by the Business Combination Agreement, including, for the avoidance of
doubt, the shares of Common Stock issuable upon exercise of Warrants, the Earnout Shares (provided that, prior to the release of such
Earnout Shares to the Eligible Stockholders (as defined in the Business Combination Agreement) in accordance with the terms of the Business
Combination Agreement, the Earnout Shares shall only be deemed to be “Registrable Securities” for purposes of Sections
2.1.1, 2.1.2 and 2.1.3) and only where the person receiving such Earnout Shares has executed and become a party to this
Agreement, the shares of Common Stock issuable upon conversion of any outstanding shares of Series A Preferred Stock and the shares of
Common Stock issuable upon exercise of Series A Investor Warrants; [(iii) any outstanding Warrants held by a Holder any outstanding shares
of Common Stock]; (iv) any outstanding shares of Common Stock or warrants to purchase shares of Common Stock (including any shares of
Common Stock issued or issuable upon the exercise of any such warrant) of the Company held by a Holder following the date hereof to the
extent that such securities are “restricted securities” (as defined in Rule 144) or are otherwise held by an “affiliate”
(as defined in Rule 144) of the Company; and (v) any other equity security of the Company issued or issuable with respect to any securities
referenced in clause (i), (ii), (iii) or (iv) above by way of a stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; provided, however, that, as to any particular
Registrable Security, such securities shall cease to be Registrable Securities upon the earliest to occur of the following events: (i)
a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities
shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement by the applicable Holder to
a Person that is not an “affiliate” (as defined in Rule 144) of the Company and new certificates for such securities not bearing
(or book-entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company and subsequent
public distribution of such securities shall not require registration under the Securities Act; (ii) such securities shall have been otherwise
transferred (or moved to a brokerage account), new certificates for such securities not bearing (or book-entry positions not subject to)
a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall
not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding; (iv) such securities may
be sold without registration pursuant to Rule 144 (but with no volume or other restrictions or limitations including as to manner or timing
of sale or current public information requirements); (v) such securities have been sold to, or through, a broker, dealer or underwriter
in a public distribution or other public securities transaction; (vi) after such time as the Holder of such securities holds less than
10% of the Registrable Securities issued to such Holder in connection with Closing, unless the Company consents otherwise and (vii) the
expiration of five years after the closing of the Business Combination, which such five-year period may be extended the Company in its
sole discretion.
“Registration”
shall mean a registration, including related Shelf Takedowns, effected by preparing and filing a Registration Statement, Prospectus or
similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder,
and such registration statement becoming effective.
“Registration
Expenses” shall mean the documented, out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all registration and filing fees
(including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc. and any national securities
exchange on which the Common Stock are then listed);
(B) fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue
sky qualifications of Registrable Securities);
(C) printing, messenger, telephone and
delivery expenses;
(D) reasonable fees and disbursements
of counsel for the Company;
(E) reasonable fees and disbursements
of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and
(F) reasonable fees and expenses of
one (1) legal counsel selected by the majority-in-interest of the Demanding Holders in an Underwritten Offering or Other Coordinated Offering.
“Registration
Statement” shall mean any registration statement that covers Registrable Securities pursuant to the provisions of this Agreement,
including any Shelf, and in each case, including the Prospectus included in such registration statement, amendments (including post-effective
amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration
statement.
“Requesting Holders”
shall have the meaning given in Section 2.1.5.
“Rule 144”
shall mean Rule 144 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may
be promulgated by the Commission.
“Securities Act”
shall mean the Securities Act of 1933, as amended from time to time.
“Series A Investor
Warrants” shall have the meaning given in the Recitals hereto.
“Series A Preferred
Stock” shall have the meaning given in the Recitals hereto.
“Shelf”
shall mean the Form S-1 Shelf, the Form S-3 Shelf, or any Subsequent Shelf Registration, as the case may be.
“Shelf Registration”
shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant
to Rule 415 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated
by the Commission.
“Shelf Takedown”
shall mean an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.
“Sponsor”
shall have the meaning given in the Preamble hereto.
“Sponsor Holders”
shall have the meaning given in the Preamble hereto.
“Sponsor Holder
Lock-Up Agreement” means the lock-up agreement, dated [ ], entered into by the Company and the Sponsor.
“Sponsor Majority
Holders” shall mean the Sponsor Holders holding in the aggregate a majority of the Registrable Securities then held by the
Sponsor Holders on an as-converted to Common Stock basis.
“Subsequent Shelf
Registration” shall have the meaning given in Section 2.1.2.
“Total Limit”
shall have the meaning given in Section 2.1.6.
“Transactions”
shall have the meaning given in the Recitals hereto.
“Transfer”
shall mean the (i) sale or assignment of, offer to sell, contract or agreement to sell, hypothecation, pledge, grant of any option to
purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent
position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act
with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash
or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).
“Underwriter”
shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such
dealer’s market-making activities.
“Underwritten
Lock-Up Period” shall have the meaning given in Section 2.3.
“Underwritten
Registration” or “Underwritten Offering” shall mean a Registration in which securities of the
Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
“Underwritten
Shelf Takedown” shall have the meaning given in subsection 2.1.4.
“USARE Holders”
shall have the meaning given in the Preamble hereto.
“Withdrawal Notice”
shall have the meaning given in Section 2.1.6.
“Yearly Limit”
shall have the meaning given in Section 2.1.4.
ARTICLE 2
REGISTRATIONS
2.1.1 Filing.
The Company shall, subject to Section 3.4, submit or file as promptly as practicable following the Closing Date a Registration
Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or, if the Company is eligible to use
a Registration Statement on Form S-3, a Shelf Registration on Form S-3 (the “Form S-3 Shelf”), in each case,
covering the resale of all Registrable Securities (determined as of two (2) Business Days prior to such submission or filing and assuming
that (i) all shares of Series A Preferred Stock are converted into shares of Common Stock at a conversion price equal to the Floor Price
and (ii) all Series A Investor Warrants are exercised in full at an exercise price equal to the Floor Price) on a delayed or continuous
basis and shall use its commercially reasonable efforts to have such Shelf declared effective as soon as reasonably practicable after
the filing thereof, but no later than the earlier of (a) the 90th calendar day following the filing date thereof if the Commission notifies
the Company that it will “review” the Registration Statement and (b) the tenth (10th) business day after the date the Company
is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed”
or will not be subject to further review. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant
to any method or combination of methods legally available to, and requested by, any Holder named therein. Subject to Sections 2.1.3
and 3.4, the Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the Commission
such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective, available
for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions
of the Securities Act until such time as there are no longer any Registrable Securities. In the event the Company files a Form S-1 Shelf,
the Company shall use its commercially reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form
S-3 Shelf as soon as reasonably practicable after the Company is eligible to use Form S-3.
2.1.2 Subsequent
Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities
are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to, as promptly as is
reasonably practicable, cause such Shelf to again become effective under the Securities Act (including using its commercially reasonable
efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable
efforts to, as promptly as is reasonably practicable, amend such Shelf in a manner reasonably expected to result in the withdrawal of
any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent
Shelf Registration”) registering the resale of all Registrable Securities under such Shelf (determined as of two (2) business
days prior to such filing and assuming that (i) all shares of Series A Preferred Stock are converted into shares of Common Stock at a
conversion price equal to the Floor Price and (ii) all Series A Investor Warrants are exercised in full at an exercise price equal to
the Floor Price), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein.
If a Subsequent Shelf Registration is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf
Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being
agreed that the Subsequent Shelf Registration shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under
the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated under the Securities Act) at the
most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration continuously effective, available
for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions
of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration shall
be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on
another appropriate form.
2.1.3 New
Registrable Securities. Subject to Section 3.4, in the event that any Holder holds Registrable Securities that are not registered
for resale on a delayed or continuous basis, the Company shall, upon the written request of such Holder, promptly use its commercially
reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at the Company’s option, any then-available
Shelf (including by means of a post-effective amendment) or a Subsequent Shelf Registration and cause the same to become effective as
soon as practicable after such filing and such Shelf or Subsequent Shelf Registration shall be subject to the terms hereof; provided,
however, that the Company shall only be required to cause such Registrable Securities to be so covered twice per calendar year for each
of (i) the Sponsor Holders, collectively and (ii) the USARE Holders, collectively.
2.1.4 Requests
for Underwritten Shelf Takedowns. Subject to Section 3.4, at any time and from time to time when an effective Shelf is on file
with the Commission, any Holder (a “Demanding Holder”) may request to sell all or any portion of its Registrable
Securities in an Underwritten Offering or other coordinated offering that is registered pursuant to the Shelf (each, an “Underwritten
Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering
shall include Registrable Securities proposed to be sold by the Demanding Holder, either individually or together with other Demanding
Holders, with a total offering price reasonably expected to exceed, in the aggregate, $25 million (the “Minimum Takedown Threshold”).
All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate
number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Subject to Section 2.4.4, the Company
shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized
investment banks), subject to the initial Demanding Holder’s prior approval (which approval shall not be unreasonably withheld,
conditioned or delayed). Subject to Section 2.4.6, each of (i) the Sponsor Holders, collectively and (ii) the USARE Holders, collectively,
may demand Underwritten Shelf Takedowns pursuant to this Section 2.1.4 (x) not more than two (2) times in any 12-month period (the
“Yearly Limit”). Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten
Offering pursuant to any then-effective Registration Statement, including a Form S-3, that is then available for such offering.
2.1.5 Reduction
of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good faith, advises the
Company, the Demanding Holders and the Holders requesting piggy back rights pursuant to this Agreement with respect to such Underwritten
Shelf Takedown (the “Requesting Holders”) (if any) in writing that the dollar amount or number of Registrable
Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other shares of Common
Stock or other equity securities that the Company desires to sell all other shares of Common Stock or other equity securities, if any,
that have been requested to be sold in such Underwritten Offering pursuant to separate written contractual piggy-back registration rights
held by any other stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be
sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the
probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum
Number of Securities”), then the Company shall include in such Underwritten Offering, before including any shares of Common
Stock or other equity securities proposed to be sold by the Company or by other holders of Common Stock or other equity securities, the
Registrable Securities of the Demanding Holders and the Requesting Holders (if any) (pro rata, as nearly as possible, based on
the respective number of Registrable Securities that each Demanding Holder and Requesting Holder (if any) has requested be included in
such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that the Demanding Holders and Requesting Holders
have requested be included in such Underwritten Shelf Takedown that can be sold without exceeding the Maximum Number of Securities). To
facilitate the allocation of Registrable Securities in accordance with the above provisions, the Company or the Underwriters may round
the number of shares allocated to any Holder to the nearest 10 Registrable Securities.
2.1.6 Underwritten
Shelf Takedown Withdrawal. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used
for marketing such Underwritten Shelf Takedown, a majority in interest of the Demanding Holders initiating an Underwritten Shelf Takedown
shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal
Notice”) to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Underwritten
Shelf Takedown; provided that any other Demanding Holder(s) may elect to have the Company continue an Underwritten Shelf Takedown if the
Minimum Takedown Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown
by the Demanding Holder(s). If withdrawn, a demand for an Underwritten Shelf Takedown shall constitute a demand for an Underwritten Shelf
Takedown by the withdrawing Demanding Holder for purposes of Section 2.1.4 and shall count toward the Yearly Limit and the Total
Limit, unless either (i) the Demanding Holder(s) making the withdrawal has not previously withdrawn any Underwritten Shelf Takedown or
(ii) the Demanding Holder(s) making the withdrawal reimburses the Company for all Registration Expenses with respect to such Underwritten
Shelf Takedown (or, if there is more than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective
number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown); provided
that, if any other Demanding Holder(s) elects to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding
sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten Shelf Takedown demanded by such Demanding Holder(s)
for purposes of Section 2.1.4 and shall count toward the Yearly Limit and the Total Limit. Following the receipt of any Withdrawal
Notice, the Company shall promptly forward such Withdrawal Notice to any other Requesting Holders. Notwithstanding anything to the contrary
in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Shelf Takedown prior to
its withdrawal under this Section 2.1.6, other than if a Demanding Holder elects to pay such Registration Expenses pursuant to
clause (ii) of the second sentence of this Section 2.1.6.
| 2.2 | Piggyback Registration. |
| 2.2.1 | Piggyback Rights. If the Company or any Holder proposes to conduct a registered offering of, or
if the Company proposes to file a Registration Statement under the Securities Act with respect to the Registration of, equity securities,
or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, or Company equity securities
for its own account or for the account of stockholders of the Company (or by the Company and by the securityholders of the Company including,
without limitation, an Underwritten Shelf Takedown pursuant to Section 2.2.1), other than a Registration Statement (or any registered
offering with respect thereto) (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer
or offering of securities solely to the Company’s existing securityholders, (iii) pursuant to a Registration Statement on Form S-4
(or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (iv) for an
offering of debt that is convertible into equity securities of the Company, (v) for a dividend reinvestment plan, or (vi) a Block Trade
or an Other Coordinated Offering (which shall be subject to Section 2.4), then the Company shall give written notice of such proposed
offering to all of the Holders of Registrable Securities as soon as practicable but not less than seven days before the anticipated filing
date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red
herring” prospectus or prospectus supplement used for marketing such offering, which notice shall (A) describe the amount and type
of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter
or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to include in
such registered offering such number of Registrable Securities as such Holders may request in writing within two (2) business days after
transmission of such written notice (such Registration, a “Piggyback Registration”). Subject to Section 2.2.2,
the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and, if applicable,
shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit
the Registrable Securities requested by the Holders pursuant to this Section 2.2.1 to be included therein on the same terms and
conditions as any similar securities of the Company included in such registered offering and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable
Securities in a Piggyback Registration shall be subject to such Holder’s agreement to enter into an underwriting agreement in customary
form with the Underwriter(s) selected for such Underwritten Offering by the Company. |
| 2.2.2 | Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten
Offering that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating
in the Piggyback Registration in writing that the dollar amount or number of shares of Common Stock or other equity securities that the
Company or the Demanding Holders desire to sell, taken together with (i) the shares of Common Stock or other equity securities, if any,
as to which Registration or a registered offering has been demanded pursuant to separate written contractual arrangements with Persons
other than the Holders of Registrable Securities hereunder (ii) the Registrable Securities as to which Registration has been requested
pursuant to this Section 2.2, and (iii) the shares of Common Stock or other equity securities, if any, as to which Registration
or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights of Persons other than
the Holders of Registrable Securities hereunder, exceeds the Maximum Number of Securities, then: |
| (a) | If the Registration or registered offering is undertaken for the Company’s account, the Company
shall include in any such Registration or registered offering (A) first, the shares of Common Stock or other equity securities that the
Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum
Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their
rights to register their Registrable Securities pursuant to subsection 2.2.1 hereof (pro rata, as nearly as practicable,
based on the respective number of Registrable Securities that such Holder has requested be included in such Underwritten Offering and
the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering), which can
be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not
been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities, if any, as
to which Registration or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights
of Persons other than the Holders of Registrable Securities hereunder, which can be sold without exceeding the Maximum Number of Securities; |
| (b) | If the Registration or registered offering is pursuant to a request by Persons other than the Holders
of Registrable Securities, then the Company shall include in any such Registration or registered offering (A) first, the shares of Common
Stock or other equity securities, if any, of such requesting Persons, other than the Holders of Registrable Securities, which can be sold
without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached
under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities
pursuant to Section 2.2.1, pro rata, as nearly as practicable, based on the respective number of Registrable Securities that each
Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have
requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; (C) third,
to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares
of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of
Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A),
(B) and (C), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering
has been requested pursuant to separate written contractual piggy-back registration rights of such Persons other than the Holder of Registrable
Securities hereunder, which can be sold without exceeding the Maximum Number of Securities; and |
| (c) | If the Registration or registered offering is pursuant to a request by Holder(s) of Registrable Securities
pursuant to Section 2.1, then the Company shall include in any such Registration or registered offering securities in the priority
set forth in Section 2.1.5. |
| 2.2.3 | Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding
Holder, whose right to withdraw from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.1.6)
shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company
and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness
of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration
pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect
to such Piggyback Registration used for marketing such transaction. The Company (whether on its own good faith determination or as the
result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement
filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement.
Notwithstanding anything to the contrary in this Agreement (other than Section 2.1.6), the Company shall be responsible for the
Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.2.3. |
| 2.2.4 | Unlimited Piggyback Registration Rights. For purposes of clarity, subject to Section 2.1.6,
any Piggyback Registration effected pursuant to Section 2.2 hereof shall not be counted as an Underwritten Shelf Takedown under
Section 2.1.4 and shall not count toward the Yearly Limit or the Total Limit. |
| 2.3 | Market Stand-off. In connection with any Underwritten Offering of equity securities of the Company
(other than a Block Trade or Other Coordinated Offering), if requested by the managing Underwriter, each Holder that is an executive officer
or director of the Company or a Holder in excess of 5.0% of the then-outstanding Common Stock or securities convertible thereinto (and
for which it is customary for such a Holder to agree to a lock-up) agrees that it shall not Transfer any shares of Common Stock or other
equity securities of the Company (other than those included in such offering pursuant to this Agreement), without the prior written consent
of the Company, during the 90-day period (or such shorter time agreed to by the managing Underwriters) beginning on the date of pricing
of such offering (the “Underwritten Lock-Up Period”), except (i) to Permitted Transferees, (ii) as expressly
permitted in writing by the Company or (iii) in the event the Underwriters managing the offering otherwise consent in writing. Each such
Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in each case on substantially the
same terms and conditions as all other Holders). The Company will not be obligated to undertake an Underwritten Shelf Takedown during
any Underwritten Lock-Up Period binding on the Holders, nor will the Company be obligated to include in any Piggyback Registration any
Registrable Securities that are then subject to a “lock-up” agreement. |
| 2.4 | Block Trades; Other Coordinated Offerings. |
| 2.4.1 | Notwithstanding any other provision of this ARTICLE 2 but subject to Section 3.4, at any
time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in (a) an underwritten
registered offering not involving a “roadshow,” an offer commonly known as a “block trade” (a “Block
Trade”) or (b) an “at the market” or similar registered offering through a broker, sales agent or distribution
agent, whether as agent or principal, (an “Other Coordinated Offering”), in each case, with an anticipated aggregate
offering price of, either (x) at least $25 million or (y) all remaining Registrable Securities held by the Demanding Holder, then such
Demanding Holder only needs to notify the Company of the Block Trade or Other Coordinated Offering at least five (5) Business Days prior
to the day such offering is to commence and the Company shall as expeditiously as possible use its commercially reasonable efforts to
facilitate such Block Trade or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable
Securities wishing to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with the
Company and any Underwriters, brokers, sales agents or placement agents prior to making such request in order to facilitate preparation
of the registration statement, prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering. |
| 2.4.2 | Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used
in connection with a Block Trade or Other Coordinated Offering, a majority-in-interest of the Demanding Holders initiating such Block
Trade or Other Coordinated Offering shall have the right to submit a Withdrawal Notice to the Company, the Underwriter or Underwriters
(if any) and any brokers, sale agents or placement agents (if any) of their intention to withdraw from such Block Trade or Other Coordinated
Offering. Notwithstanding anything to the contrary in this Agreement, the Demanding Holder shall be responsible for the Registration Expenses
incurred in connection with a Block Trade or Other Coordinated Offering prior to its withdrawal under this Section 2.4.2. |
| 2.4.3 | Notwithstanding anything to the contrary in this Agreement, Section 2.2 shall not apply to a Block
Trade or Other Coordinated Offering initiated by a Demanding Holder pursuant to this Agreement. |
| 2.4.4 | The Demanding Holder in a Block Trade or Other Coordinated Offering shall have the right to select the
Underwriters and any brokers, sale agents or placement agents (if any) for such Block Trade or Other Coordinated Offering (in each case,
which shall consist of one or more reputable nationally recognized investment banks). |
| 2.4.5 | Subject to Section 2.4.6, each of (i) the Sponsor Holders, as a group, and (ii) the USARE Holders,
as a group, may demand no more than two (2) Block Trades or Other Coordinated Offerings pursuant to this Section 2.4 in any twelve
(12) month period. For the avoidance of doubt, any Block Trade or Other Coordinated Offering effected pursuant to this Section 2.4
shall not be counted as a demand for an Underwritten Shelf Takedown pursuant to Section 2.1.4. |
| 2.4.6 | Notwithstanding anything to the contrary in this Agreement, with respect to (i) the Sponsor Holders, as
a group, or (ii) the USARE Holders, as a group, in no event may the number of Block Trades or Other Coordinated Offerings demanded pursuant
to this Section 2.4 plus the number of Underwritten Shelf Takedowns demanded pursuant to Section 2.1.4 exceed a total of
three (3) demands for such group in any twelve (12) month period. |
| 2.5 | Legends. In connection with any sale or other disposition of the Registrable Securities by a Holder
pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) and upon compliance
by the Holder with the requirements of this Section 2.5, if requested by the Holder, the Company shall use its commercially reasonable
efforts to cause the transfer agent for the Registrable Securities (the “Transfer Agent”) to remove any restrictive
legends related to the book entry account holding such Registrable Securities (if the requirements of Rule 144 have been met) and make
a new, unlegended entry for such book entry shares sold or disposed of without restrictive legends promptly after any such request therefor
from the Holder; provided that the Company and the Transfer Agent have timely received from the Holder customary representations and other
documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith. Subject to receipt from the Holder
by the Company and the Transfer Agent of customary representations and other documentation reasonably acceptable to the Company and the
Transfer Agent in connection therewith, the Holder may request that the Company remove any legend from the book entry position evidencing
its Registrable Securities and the Company will, if required by the Transfer Agent, use its commercially reasonable efforts cause an opinion
of the Company’s counsel be provided, in a form reasonably acceptable to the Transfer Agent, to the effect that the removal of such
restrictive legends in such circumstances may be effected under the Securities Act, following the earliest of such time as such Registrable
Securities (i) are subject to or have been or are about to be sold pursuant to an effective registration statement or (ii) have been or
are about to be sold pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission).
If restrictive legends are no longer required for such Registrable Securities pursuant to the foregoing, the Company shall, in accordance
with the provisions of this section promptly after any request therefor from the Holder accompanied by such customary and reasonably acceptable
representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the
Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry for such book entry shares. The Company
shall be responsible for the fees of its Transfer Agent, its legal counsel and all DTC fees associated with such issuance. |
| 2.6 | FINRA Compliance. Notwithstanding anything herein to the contrary, Cantor may not (i) exercise
demand registration rights after five (5) years from the commencement of sales in the Company’s initial public offering, (ii) exercise
demand rights on more than one occasion or (iii) exercise its “piggyback” registration rights after seven (7) years from the
effective date of the Company’s initial public offering. |
ARTICLE 3
COMPANY PROCEDURES
| 3.1 | General Procedures. In connection with any Shelf and/or Shelf Takedown, the Company shall use its
commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended
plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request
in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities
to a Holder’s members, securityholders or partners), and pursuant thereto the Company shall, as expeditiously as possible: |
| 3.1.1 | prepare and file with the Commission, as soon as reasonably practicable, a Registration Statement with
respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective
and remain effective until all Registrable Securities have ceased to be Registrable Securities; |
| 3.1.2 | prepare and file with the Commission such amendments and post-effective amendments to the Registration
Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%)
of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required
by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and
regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement
are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus; |
| 3.1.3 | prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish
without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’
legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement
(in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration
Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities
included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable
Securities owned by such Holders; |
| 3.1.4 | prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i)
register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws
of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light
of their intended plan of distribution) may request (or provide evidence reasonably satisfactory to such Holders that the Registrable
Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities
covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by
virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable
the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities
in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation
in any such jurisdiction where it is not then otherwise so subject; |
| 3.1.5 | use commercially reasonable efforts to cause all such Registrable Securities to be listed on each national
securities exchange or automated quotation system on which similar securities issued by the Company are then listed; |
| 3.1.6 | provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities
no later than the effective date of such Registration Statement; |
| 3.1.7 | advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation
or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued; |
| 3.1.8 | prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such
Registration Statement or Prospectus as may be (a) necessary in order to comply with the Securities Act, the Exchange Act and the rules
and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of
days that sales are suspended pursuant to Section 3.4, furnish a copy thereof to each seller of such Registrable Securities and
by means of one counsel on behalf of all such sellers (excluding any exhibits thereto and any filing made under the Exchange Act that
is to be incorporated by reference therein); |
| 3.1.9 | notify the selling Holders at any time when a Prospectus relating to such Registration Statement is required
to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration
Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof; |
| 3.1.10 | in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker,
placement agent or sales agent that is registered pursuant to a Registration Statement, permit a representative of the Holders (such representative
to be selected by a majority of the participating Holders), the Underwriters or other financial institutions facilitating such Underwritten
Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or
accountant retained by such Holders collectively, Underwriters or other financial institutions to participate, at each such Person’s
own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply
all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant
in connection with the Registration; provided, however, that such representative, Underwriters or financial institutions agree to confidentiality
arrangements, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information; |
| 3.1.11 | use commercially reasonable efforts to obtain a “comfort” letter (including a bring-down letter
dated as of the date the Registrable Securities are delivered for sale pursuant to such Registration) from the Company’s independent
registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or a sale by a broker,
placement agent or sales agent pursuant to a Registration Statement (subject to such Underwriter or other financial institution facilitating
such offering providing such certification or representation as reasonably requested by the Company’s independent registered public
accountings and the Company’s counsel), to the extent customary, in customary form and covering such matters of the type customarily
covered by “comfort” letters as the managing Underwriter or other similar type of sales agent or placement agent may reasonably
request; |
| 3.1.12 | use commercially reasonable efforts to obtain, in the event of an Underwritten Offering, a Block Trade,
an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to a Registration Statement, to the extent
customary, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative
assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating
Holders, the broker, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect
to the Registration in respect of which such opinion is being given as the participating Holders, broker, placement agent, sales agent,
or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, provided, in each
case, that such participating Holders provide such information to such counsel as is customarily required for, or is reasonably requested
by such counsel for purposes of, such opinion or negative assurance letter; |
| 3.1.13 | in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker,
placement agent or sales agent pursuant to a Registration Statement, enter into and perform its obligations under an underwriting agreement,
purchase agreement, sales agreement or placement agreement in usual and customary form, with the managing Underwriter or broker, sales
agent or placement agent of such offering or sale; |
| 3.1.14 | make available to its security holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective
date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any
successor rule promulgated thereafter by the Commission); |
| 3.1.15 | with respect to an Underwritten Offering pursuant to Section 2.1.4, use its commercially reasonable
efforts to make available senior executives of the Company to participate in customary “road show” presentations that may
be reasonably requested (in light of the circumstances of the Company at the time) by the Underwriter in such Underwritten Offering; and |
| 3.1.16 | otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably
be requested by the Holders participating in such Registration, consistent with the terms of this Agreement, in connection with such Registration. |
Notwithstanding the foregoing,
the Company shall not be required to provide any documents or information to an Underwriter or other sales agent or placement agent if
such Underwriter or other sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering
or other offering involving a registration as an Underwriter or broker, sales agent or placement agent, as applicable.
| 3.2 | Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company.
It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities,
such as Underwriters’ or agents’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as
set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing
the Holders. |
| 3.3 | Requirements for Participation in Underwritten Offerings. The Holders of Registrable Securities
shall provide such information as may reasonably be requested by the Company, or the managing Underwriter or placement agent or sales
agent, if any, in connection with the preparation of any Registration Statement or Prospectus, including amendments and supplements thereto,
in order to effect the registration of any Registrable Securities under the Securities Act pursuant to ARTICLE 2 and in connection
with the Company’s obligation to comply with federal and applicable state securities Laws. Notwithstanding anything in this Agreement
to the contrary, if any Holder does not timely provide the Company with its requested Holder Information, the Company may exclude such
Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the
advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to withhold such
information. No Person may participate in any Underwritten Offering or other coordinated offering for equity securities of the Company
pursuant to a Registration initiated by the Company hereunder unless such Person (i) agrees to sell such Person’s securities on
the basis provided in any arrangements approved by the Company and (ii) timely completes and executes all customary questionnaires, powers
of attorney, indemnities, lock-up agreements, underwriting or other agreements and other customary documents as may be reasonably required
under the terms of such arrangements. The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3
shall not affect the registration of the other Registrable Securities to be included in such Registration. |
| 3.4 | Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights. |
| 3.4.1 | Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a
Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received copies
of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare
and file such supplement or amendment as soon as practicable after the time of such notice), or until he, she or it is advised in writing
by the Company that the use of the Prospectus may be resumed. |
| 3.4.2 | If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration
at any time would (i) require the Company to make an Adverse Disclosure, (ii) require the inclusion in such Registration Statement of
financial statements that are unavailable to the Company for reasons beyond the Company’s control or (iii) in the good faith judgment
of the majority of the Board, be seriously detrimental to the Company, and the majority of the Board concludes as a result that it is
essential to defer such filing, initial effectiveness or continued use at such time, the Company may, upon giving prompt written notice
of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay or suspension), delay
the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good
faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under this Section 3.4.2,
the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to
any Registration in connection with any sale or offer to sell Registrable Securities until such Holder receives written notice from the
Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice
and its contents. |
| 3.4.3 | Subject to Section 3.4.4, if (i) during the period starting with the date 60 days prior to the
Company’s good faith estimate of the date of the filing of, and ending on a date 120 days after the effective date of, a Company-initiated
Registration, and provided that the Company continues to actively employ, in good faith, all commercially reasonable efforts to maintain
the effectiveness of the applicable Shelf Registration, or (ii) if, pursuant to Section 2.1.4, Holders have requested an Underwritten
Shelf Takedown and the Company and such Holders are unable to obtain the commitment of underwriters to firmly underwrite such offering,
then, in each case, the Company may, upon giving prompt written notice of such action to the Holders, delay any other registered offering
pursuant to Section 2.1.4. |
| 3.4.4 | The right to delay or suspend any filing, initial effectiveness or continued use of a Registration Statement
pursuant to Section 3.4.2 or a registered offering pursuant to Section 3.4.3 shall be exercised by the Company, in the aggregate,
for not more than 90 consecutive calendar days or more 120 total calendar days in each case, during any 12-month period. |
| 3.5 | Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at
all times while it shall be a reporting company under the Exchange Act, covenants to use commercially reasonable efforts to file timely
(or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company
after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act. Upon the request of any Holder, the Company shall deliver
to such Holder a written certification of a duly authorized officer as to whether is has complied with such requirements. |
ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION
| 4.1.1 | The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities,
its officers, directors and agents and each Person who controls such Holder (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, reasonable outside attorneys’
fees) resulting from any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration
Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto filed pursuant to this Agreement or any
omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Company by such Holder
expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person who controls such
Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification
of the Holder. |
| 4.1.2 | In connection with any Registration Statement filed pursuant to this Agreement in which a Holder of Registrable
Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits
as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”)
and, to the extent permitted by law, shall indemnify the Company, its directors, officers and agents and each Person who controls the
Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket
expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement
of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such untrue statement is contained in (or not contained in,
in the case of an omission) any information or affidavit so furnished in writing by such Holder expressly for use therein; provided,
however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and
the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify
the Underwriters, their officers, directors and each person or entity who controls such Underwriters (within the meaning of the Securities
Act) to the same extent as provided in the foregoing with respect to indemnification of the Company. |
| 4.1.3 | Any Person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying
party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair
any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party)
and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than
one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect
to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter
into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party
pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of
such indemnified party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to
such indemnified party of a release from all liability in respect to such claim or litigation. |
| 4.1.4 | The indemnification provided for under this Agreement shall remain in full force and effect regardless
of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified
party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering
also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the
Company’s or such Holder’s indemnification is unavailable for any reason. |
| 4.1.5 | If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable
or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses
referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion
as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied
by, in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s
relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the
liability of any Holder under this Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in
such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred
to above shall be deemed to include, subject to the limitations set forth in Section 4.1.1, 4.1.2 and 4.1.3 above,
any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.1.5 were determined
by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred
to in this Section 4.1.5. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution pursuant to this Section 4.1.5 from any Person who was not guilty of such fraudulent misrepresentation. |
| 4.2 | Waiver of Medallion Guaranty. The Company agrees to use commercially reasonable efforts to enter
into that certain indemnification agreement, substantially in the form attached as Exhibit B to this Agreement, in favor of Continental
Stock Transfer & Trust Company (or any successor transfer agent or warrant agent of the Company) in connection with the waiver of
any requirement to provide a medallion guarantee in connection with any Transfer of any equity securities of the Company by any Sponsor
Holder or Cantor or any of their respective Permitted Transferees; provided that, in each case, as a prerequisite to the Company’s
entry into such indemnification agreement, such Sponsor Holder or Cantor or their respective Permitted Transferee enters into an indemnification
agreement, substantially in the form attached as Exhibit C to this Agreement, in favor of the Company. |
ARTICLE 5
MISCELLANEOUS
| 5.1 | 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 email or other electronic means (including email), (iii)
one (1) 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). Any notice or communication
under this Agreement must be addressed, if to the Company, to: USA Rare Earth, Inc., Attention: [●], Email: [●], with a copy
(which shall not constitute notice) to King & Spalding, 1100 Louisiana, Suite 4100, Houston, Texas 77002-5213, Attention: Trevor G.
Pinkerton, Tim FitzSimons, Email: TPinkerton@kslaw.com, TFitzsimons@kslaw.com; and if to any Holder, at such Holder’s address or
contact information as set forth in the Company’s books and records. Any party may change its address for notice at any time and
from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after
delivery of such notice as provided in this Section 5.1. |
| 5.2 | Assignment; No Third Party Beneficiaries. |
| 5.2.1 | This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or
delegated by the Company in whole or in part. |
| 5.2.2 | This Agreement and the rights, duties and obligations of the Holders hereunder may not be assigned or
delegated by the Holders in whole or in part; provided, however, that, subject to Section 5.2.5, a Holder may assign the
rights and obligations of such Holder hereunder relating to particular Registrable Securities in connection with the transfer of such
Registrable Securities to a Permitted Transferee of such Holder (it being understood that no such Transfer shall reduce any rights of
the Holder with respect to Registrable Securities still held by such Holder). A Permitted Transferee receiving Registrable Securities
from a Sponsor Holder shall become a Sponsor Holder, a Permitted Transferee receiving Registrable Securities from an USARE Holder shall
become a USARE Holder and a Permitted Transferee receiving Registrable Securities from an Other Holder shall become an Other Holder. |
| 5.2.3 | This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each
of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees. |
| 5.2.4 | This Agreement shall not confer any rights or benefits on any Persons that are not parties hereto, other
than as expressly set forth in this Agreement and Section 5.2 hereof. |
| 5.2.5 | No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall
be binding upon or obligate the Company unless such assignment is permitted under Section 5.2.2 unless and until the Company shall
have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) the written agreement of the assignee,
in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished
by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section
5.2 shall be null and void. |
| 5.3 | Counterparts. This Agreement 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. |
| 5.4 | Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or
related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of
the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require
or permit the application of Laws of another jurisdiction. |
| 5.5 | Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the
transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does
not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject
matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction
of each such court in any such Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue
or to convenience of forum, (iii) agrees that all claims in respect of the Legal Proceeding shall be heard and determined only in any
such court, and (iv) agrees not to bring any Legal Proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted
by Law or to commence Legal Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce
judgments obtained in any Legal Proceeding, suit or proceeding brought pursuant to this Section 5.5. |
| 5.6 | Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH
PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. |
| 5.7 | Amendments and Modifications. Upon the written consent of the Company and the Holders of at least
a majority in interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions
set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided,
however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects the Sponsor Holders shall
also require the written consent of the Sponsor Majority Holders so long as the Sponsor Holders hold, in the aggregate, at least two percent
(2%) of the outstanding shares of Common Stock (on an as converted to Common Stock basis); and provided, further, that any amendment
hereto or waiver hereof that adversely affects one Holder, solely in his, her or its capacity as a holder of the shares of capital stock
of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder
so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of
a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies
of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as
a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party. |
| 5.8 | Other Registration Rights. Other than as provided in the Warrant Agreement, dated as of May 24,
2023, between the Company and Continental Stock Transfer & Trust Company, the Company represents and warrants that no Person, other
than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to
include such securities of the Company in any Registration Statement filed by the Company for the sale of securities for its own account
or for the account of any other Person. Further, the Company represents and warrants that this Agreement supersedes any other registration
rights agreement or agreement with similar terms and conditions, and in the event of a conflict between any such agreement or agreements
and this Agreement, the terms of this Agreement shall prevail. |
| 5.9 | Term. This Agreement shall terminate upon the earlier of (i) the fifth anniversary of the date
of this Agreement and (ii) with respect to any Holder, the date that such Holder no longer holds any Registrable Securities. The provisions
of ARTICLE 4 shall survive any termination. |
| 5.10 | Holder Information. Each Holder agrees, if requested in writing, to represent to the Company the
total number of Registrable Securities held by such Holder in order for the Company to make determinations hereunder. |
| 5.11 | Additional Holders; Joinder. In addition to Persons who may become Holders pursuant to Section
5.2, subject to the prior written consent of at least a majority in interest of the aggregate Registrable Securities at the time in
question, the Company may make any Person who acquires Common Stock or rights to acquire Common Stock after the date hereof a party to
this Agreement (each such Person, an “Additional Holder”) by obtaining an executed joinder to this Agreement
from such Additional Holder in the form of Exhibit A attached hereto (a “Joinder”). Such Joinder shall
specify the rights and obligations of the applicable Additional Holder under this Agreement. Upon the execution and delivery and subject
to the terms of a Joinder by such Additional Holder, the Common Stock of the Company then owned, or underlying any rights then owned,
by such Additional Holder (the “Additional Holder Common Stock”) shall be Registrable Securities to the extent
provided herein and therein, and such Additional Holder shall be a Holder under this Agreement with respect to such Additional Holder
Common Stock. |
| 5.12 | 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. |
| 5.13 | Entire Agreement; Restatement. 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, 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 with respect
to the subject matter contained herein. Upon the Closing, the Original RRA shall no longer be of any force or effect. |
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first written above.
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COMPANY: |
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USA Rare Earth, Inc., a Delaware corporation |
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By: |
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Name: |
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Title: |
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USARE HOLDERS: |
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[●] |
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[●] |
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[●] |
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SPONSOR: |
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INFLECTION POINT HOLDINGS II LLC,
a |
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Delaware limited liability company |
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By: |
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Name: |
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Title: |
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OTHER SPONSOR HOLDERS: |
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[●] |
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CANTOR FITZGERALD & CO. |
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By: |
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Name: |
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Exhibit A
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
JOINDER
The undersigned is executing
and delivering this joinder (this “Joinder”) pursuant to the Amended and Restated Registration Rights Agreement,
dated as of [____], 2024 (as the same may hereafter be amended, the “Registration Rights Agreement”), among
USA Rare Earth, Inc., a Delaware corporation (the “Company”), and the other Persons named as parties therein.
Capitalized terms used but not otherwise defined herein shall have the meanings provided in the Registration Rights Agreement.
By executing and delivering
this Joinder to the Company, and upon acceptance hereof by the Company upon the execution of a counterpart hereof, the undersigned hereby
agrees to become a party to, to be bound by and to comply with the Registration Rights Agreement as a Holder of Registrable Securities
in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement as [a Sponsor Holder / a USARE
Holder / an Other Holder], and the undersigned’s [shares of Common Stock] shall be included as Registrable Securities under the
Registration Rights Agreement to the extent provided therein; provided, however, that the undersigned and its permitted assigns
(if any) shall not have any rights as Holders, and the undersigned’s (and its transferees’) [shares of Common Stock] shall
not be included as Registrable Securities, for purposes of the Excluded Sections.
For purposes of this Joinder,
“Excluded Sections” shall mean [__________].
Accordingly, the undersigned
has executed and delivered this Joinder as of the __________ day of __________, 20__.
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Signature of Stockholder
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Print Name of Stockholder |
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Its: |
Agreed and Accepted as of
____________, 20__
Exhibit B
USA Rare Earth, Inc.
[●]
[●]
[ ], 2024
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Re: Indemnification in-lieu-of Medallion Signature
Guarantee
To whom it may concern:
This letter is in regards
to the transfer by [Inflection Point Holdings II LLC / Name of Sponsor Holder] to [ ], of [ ] [shares
of Common Stock / warrants] of USA Rare Earth, Inc. (the “Company”). Please be advised that the Company authorizes
Continental Stock Transfer & Trust Company to process the subject transfer, which includes securities that have been duly endorsed
by the registered holder but do not bear a customary medallion signature guarantee. The Company agrees to indemnify Continental Stock
Transfer & Trust Company against all losses, liability or costs that may ensue as a result of its processing the above referenced
transaction.
I, [ ● ],
a duly authorized officer of the Company, have the authority to execute this indemnification on behalf of the Company.
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Very truly yours, |
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USA Rare Earth, Inc. |
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By: |
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Name: |
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Title: |
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Exhibit C
[Inflection Point Holdings II LLC / Name of
Sponsor Holder]
[●]
[●]
[ ], 2024
USA Rare Earth, Inc.
[●]
[●]
Re: Indemnification in-lieu-of Medallion Signature
Guarantee
To whom it may concern:
This letter is in regards
to the transfer by [Inflection Point Holdings II LLC / Name of Sponsor Holder] (the “Transferor”) to [ ],
of [ ] [shares of Common Stock / warrants] of USA Rare Earth, Inc. (the “Company”). Please be advised
that the Transferor authorizes the Company and Continental Stock Transfer & Trust Company to process the subject transfer, which includes
securities that have been duly endorsed by the Transferor but do not bear a customary medallion signature guarantee. The Transferor agrees
to indemnify the Company against all losses, liability or costs that may ensue as a result of its processing the above referenced transaction.
I, [ ● ],
a duly authorized officer of the Company, have the authority to execute this indemnification on behalf of the Company.
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Very truly yours, |
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[Inflection Point Holdings II LLC / Name of Sponsor Holder] |
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By: |
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Title: |
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Exhibit G – Form of Sponsor Lock-Up Agreement
FORM OF LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this
“Agreement”), dated as of [●], is made and entered into by and among USA Rare Earth, Inc., a Delaware
corporation (the “Company”) (formerly known as Inflection Point Acquisition Corp. II, a Cayman Islands exempted
company limited by shares, prior to its domestication as a Delaware corporation), and Inflection Point Holdings II LLC, a Delaware limited
liability company (the “Sponsor”), and, together with any Person who hereafter becomes a party to this Agreement
pursuant to Section 2 or Section 7 of this Agreement, the “Securityholders” and each, a “Securityholder”).
Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement
(as defined herein).
WHEREAS, the Company
is party to that certain Business Combination Agreement, dated as of [●], 2024 (as the same may be amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and
among the Company, IPXX Merger Sub, LLC (“Merger Sub”) and USA Rare Earth, LLC, a Delaware limited liability
company (“Legacy USARE”), pursuant to which the Company, Merger Sub and Legacy USARE consummated a business
combination (the “Business Combination”);
WHEREAS, immediately
prior to the Business Combination, the Company transferred by way of continuation to and domesticated as a Delaware corporation in accordance
with Section 388 of the Delaware General Corporation Law, as amended, and the Companies Act (As Revised) of the Cayman Islands (the “Domestication”);
WHEREAS, prior to the
Domestication, the Sponsor owned (i) 6,250,000 Purchaser Class B Ordinary Shares and (ii) 6,000,000 Cayman Purchaser Warrants;
WHEREAS, (i) immediately
prior to the Domestication, each then issued and outstanding Purchaser Class B Ordinary Share converted automatically, on a one-for-one
basis, into a Purchaser Class A Ordinary Share and (ii) in connection with the Domestication, (a) each then issued and outstanding Purchaser
Class A Ordinary Share converted automatically, on a one-for-one basis, into a share of Domesticated Purchaser Class A Common Stock and
(b) each then issued and outstanding Cayman Purchaser Warrant converted automatically into a Domesticated Purchaser Warrant, following
which the Sponsor owned (i) 6,250,000 shares of Domesticated Purchaser Common Stock (the “Lock-Up Shares”) and
(ii) 6,000,000 Domesticated Purchaser Warrants (the “Lock-Up Warrants”);
WHEREAS, in connection
with the Business Combination, the parties hereto wish to set forth herein certain understandings between such parties with respect to
restrictions on transfer of equity interests in the Company.
NOW, THEREFORE, in
consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
1. Transfer
Restrictions.
| (i) | Subject to the exceptions set forth herein, each Securityholder agrees not to, without the prior written
consent of the board of directors of the Company, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option
to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Lock-Up Shares, (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Lock-Up Shares or (iii)
take any action in furtherance of any of the matters described in the foregoing clause (i) or (ii) (the actions specified in clauses
(i)-(iii), collectively, “Transfer”) prior to the date that is six (6) months after the consummation of
the Merger (the “Initial Common Stock Lock-Up Period”). |
| (ii) | Subject to the exceptions set forth herein, each Securityholder further agrees not to, without the prior
written consent of the board of directors of the Company, Transfer more than 50% of the Lock-Up Shares prior to the date that is one (1)
year after the consummation of the Merger (the “Second Common Stock Lock-Up Period”). |
| (iii) | Each Securityholder further agrees not to Transfer any Lock-Up Warrants (or any shares of Common Stock
issued or issuable upon the exercise of such Lock-Up Warrants), prior to the date that is 30 days after the date hereof (the “Warrant
Lock-Up Period” and, each of the Initial Common Stock Lock-Up Period, the Second Common Stock Lock-Up Period and the Warrant
Lock-Up Period, a “Lock-Up Period”). |
2. Permitted
Transfers. The restrictions set forth in Section 1 shall not apply to:
| (i) | Transfers of any securities other than the (a) Lock-Up Shares, (b) the Lock-Up Warrants, (c) any shares
of Common Stock issued or issuable upon the exercise of such Lock-Up Warrants, (d) any securities that may be acquired by Securityholders
upon the exercise, conversion or redemption of any of the securities described in clauses (a), (b) or (c), and (e) any other equity security
of the Company issued or issuable with respect to any securities referenced in clause (a), (b), (c) or (d) above by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or similar
transaction. |
| (ii) | Transfers to the Company’s officers or directors, any Affiliate or family member of any of the Company’s
officers or directors, any members or partners of the Sponsor or their Affiliates, any Affiliates of the Sponsor, or any employees of
such Affiliates; |
| (iii) | In the case of an individual, Transfers to any Affiliates or family members of the Securityholder; |
| (iv) | Transfers to any investment funds or vehicles controlled or managed by the Securityholder or any of its
Affiliates; |
| (v) | Transfers by gift to a trust, the beneficiary of which is a Person to whom a Transfer would be permitted
under Section 2(iii), or to a charitable organization; |
| (vi) | in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of such
individual; |
| (vii) | in the case of an individual, Transfers pursuant to a qualified domestic relations order; |
| (viii) | Transfers to a nominee or custodian of a Person to whom a Transfer would be permitted under Section
2(iii); |
| (ix) | by private sales or transfers made in connection with any forward purchase agreement or similar arrangement
at prices no greater than the price at which the Lock-Up Shares or Lock-Up Warrants (as applicable) were originally purchased; |
| (x) | Transfers in connection with any legal, regulatory or other order; |
| (xi) | in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the
estate of a beneficiary of such trust; |
| (xii) | in the case of an entity, Transfers as part of a distribution to members, partners, shareholders or equityholders
of the Securityholder; |
| (xiii) | in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization
and the entity’s organizational documents upon dissolution of the entity; |
| (xiv) | the exercise of stock options or warrants to purchase shares of Common Stock or the vesting of stock awards
relating to shares of Common Stock and any related Transfer of shares of Common Stock in connection therewith (x) deemed to occur upon
the “cashless” or “net” exercise of such options or warrants or (y) for the purpose of paying the exercise price
of such options or warrants or for paying taxes due as a result of the exercise of such options or warrants, the vesting of such options,
warrants or stock awards, or as a result of the vesting of such shares of Common Stock, it being understood that all shares of Common
Stock received upon such exercise, vesting or transfer will remain subject to the restrictions of this Agreement during the Lock-Up Period; |
| (xv) | Transfers to the Company pursuant to any contractual arrangement in effect upon the consummation of the
Merger that provides for the repurchase by the Company or forfeiture of Common Stock or other securities convertible into, or exercisable,
redeemable or exchangeable for, Common Stock in connection with the termination of the Securityholder’s service to the Company; |
| (xvi) | the entry, by the Securityholder, at any time after the consummation of the Merger, of any trading plan
providing for the sale of shares of Common Stock by the Securityholder, which trading plan meets the requirements of Rule 10b5-1(c) under
the Exchange Act; provided, however, that such plan does not provide for, or permit, the sale of any shares of Common Stock
during any applicable Lock-Up Period and no public announcement or filing is voluntarily made or required regarding such plan during any
applicable Lock-Up Period; |
| (xvii) | Transfers in the event of the completion of a liquidation, merger, stock exchange, reorganization or other
similar transaction that results in all of the Company’s securityholders having the right to exchange their shares of Common Stock
for cash, securities or other property; and |
| (xviii) | Transfers to satisfy any U.S. federal, state, or local income tax obligations of a Securityholder (or
its direct or indirect owners) arising from a change in the U.S. Internal Revenue Code of 1986, as amended (the “Code”),
or the U.S. Treasury Regulations promulgated thereunder (the “Regulations”) after the date on which the Business
Combination Agreement was executed by the parties, and such change prevents the Domestication or the Merger from qualifying as a “reorganization”
pursuant to Section 368 of the Code (and such Transaction does not qualify for similar tax-free treatment pursuant to any successor or
other provision of the Code or Regulations taking into account such changes), in each case solely and to the extent necessary to cover
any tax liability as a direct result of the transaction. |
provided, however, that (A) in the case
of clauses (ii) through (xii), as a prerequisite to such Transfer, such permitted transferee(s) must enter into joinder to this Agreement,
substantially in the form of Exhibit A hereto, in order to become a “Securityholder” for purposes of this Agreement.
For purposes of this Section 2, “immediate family” shall mean a spouse, domestic partner, child (including by adoption),
father, mother, brother or sister of the Securityholder, and lineal descendant (including by adoption) of the Securityholder or of any
of the foregoing persons.
3. Termination.
This Agreement shall terminate upon the earlier of (i) the expiration of the Second Common Stock Lock-Up Period, (ii) the closing of a
merger, liquidation, stock exchange, reorganization or other similar transaction after the date hereof that results in all of the public
stockholders of the Company having the right to exchange their shares of Common Stock for cash securities or other property and (iii) the
liquidation of the Company.
4. Prohibited
Transfers. In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of
the securities described therein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute
a violation or breach of this Agreement.
5. Amendment.
This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Company and the Securityholders
holding a majority of the aggregate number of shares of Common Stock then held by all Securityholders as to which this Agreement has not
been terminated, executed in the same manner as this Agreement and which makes reference to this Agreement.
6. Entire
Agreement. This Agreement and the documents or instruments referred to herein 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 hereto with respect to the subject matter contained
herein.
7. 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 parties hereto, 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.
8. Governing
Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions
contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect
to principles or rules of conflict of Laws to the extent such principles or rules would require or permit the application of Laws of another
jurisdiction.
9. Jurisdiction.
Any Legal Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in
the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District
Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State
of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Legal Proceeding,
(ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all
claims in respect of the Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any Legal
Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained
shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise
proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Legal Proceeding, suit or
proceeding brought pursuant to this Section 9.
10. WAIVER
OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
11. Counterparts.
This Agreement (and any joinder to this Agreement) 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.
12. 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.
13. Liability.
The liability of any Securityholder hereunder is several (and not joint). Notwithstanding any other provision of this Agreement, in no
event will any Securityholder be liable for any other Securityholder’s breach of such other Securityholder’s obligations under
this Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
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USA RARE EARTH, INC. |
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[Signature Page to Lock-Up
Agreement]
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the date first above written.
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SECURITYHOLDER: |
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INFLECTION POINT HOLDINGS II LLC |
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By: |
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[Signature Page to Lock-Up
Agreement]
EXHIBIT A
JOINDER TO LOCKUP AGREEMENT
[●], 20__
Reference is made to the Lockup
Agreement, dated as of [●], by and among USA Rare Earth, Inc. (the “Company”) and the Securityholders
(as defined therein) from time to time party thereto (as amended, supplemented or otherwise modified from time to time, the “Lockup
Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the
Lockup Agreement.
Each of the Company and the
undersigned holder of equity interests in the Company (the “New Securityholder”) agrees that this Joinder
to the Lockup Agreement (this “Joinder”) is being executed and delivered for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
The New Securityholder hereby
agrees to and does become party to the Lockup Agreement as a Securityholder. This Joinder shall serve as a counterpart signature page
to the Lockup Agreement and by executing below, the New Securityholder is deemed to have executed the Lockup Agreement with the same force
and effect as if originally named a party thereto.
This Joinder 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.
[Remainder of Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the undersigned have duly executed
this Joinder as of the date first set forth above.
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USA RARE EARTH, INC. |
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new securityholder: |
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[●] |
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[Signature Page to Joinder
to Lock-Up Agreement]
G-9
Exhibit 10.1
SPONSOR SUPPORT AGREEMENT
This Sponsor Support
Agreement (this “Agreement”) is dated as of August 21, 2024, by and among Inflection Point Holdings II LLC, a
Delaware limited liability company (the “Sponsor”), Inflection Point Acquisition Corp. II, a Cayman Islands
exempted company limited by shares (which shall domesticate as a Delaware corporation prior to the Closing) (the
“Purchaser”), and USA Rare Earth, LLC, a Delaware limited liability company (the “Company”).
Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination
Agreement (as defined below).
WHEREAS, as of the date hereof,
the Sponsor is the holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of
6,250,000 Purchaser Class B Ordinary Shares (which constitute all of the outstanding Purchaser Class B Ordinary Shares) and 6,000,000
Purchaser Private Placement Warrants (collectively, the “Subject Securities”);
WHEREAS, contemporaneously with
the execution and delivery of this Agreement, the Purchaser, the Company and IPXX Merger Sub, LLC, a Delaware limited liability company
and direct wholly-owned subsidiary of the Purchaser, have entered into the Business Combination Agreement (as it may be amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”),
dated as of the date hereof, pursuant to which, among other transactions, the Purchaser and the Company intend to consummate a business
combination; and
WHEREAS, as an inducement to
the Purchaser and the Company to enter into the Business Combination Agreement and to consummate the Transactions, the parties hereto
desire to agree to certain matters as set forth herein.
NOW, THEREFORE, in consideration
of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
ARTICLE
I
SPONSOR SUPPORT AGREEMENT; COVENANTS
Section 1.1
Binding Effect of Business Combination Agreement. The Sponsor hereby acknowledges that it has read the Business Combination
Agreement and this Agreement and has had the opportunity to consult with its tax and legal advisors. The Sponsor shall be bound by, be
subject to and comply with Sections 6.06 (No Solicitation), 6.15 (Public Announcements), 6.16 (Confidential Information)
and 6.13(c) (Extension) of the Business Combination Agreement (and any relevant definitions contained in any such Sections) as
if the Sponsor was an original signatory to the Business Combination Agreement with respect to such provisions.
Section 1.2
No Transfer.
(a)
Unless otherwise deemed a Permitted Transfer (as defined below), during the period commencing on the date hereof and ending on
the earliest of (a) the Closing, (b) such date and time as the Business Combination Agreement shall be terminated in accordance with Section
8.01 (Termination) thereof and (c) the liquidation of the Purchaser (the earliest of (a), (b) and (c), the “Expiration
Time”), the Sponsor shall not, without the prior written consent of the Company, (i) sell, offer to sell, contract or agree
to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, file
(or participate in the filing of) a registration statement with the SEC (other than the Proxy Statement/Registration Statement) or establish
or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange
Act, with respect to any Subject Securities owned by the Sponsor, (ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of any Subject Securities owned by the Sponsor or (iii) take any action
in furtherance of any of the matters described in the foregoing clause (i) or (ii) (each, a “Transfer”). The Sponsor
agrees to promptly notify the Company in writing of any Permitted Transfer.
(b)
“Permitted Transfer” means any Transfer of Subject Securities (i) to (A) any officer or director of the Purchaser,
the Company or the Sponsor, (B) any Affiliates or family members of the officers or directors of the Purchaser, the Company or the Sponsor,
or (C) any direct or indirect partners, members or equity holders of the Sponsor or any related investment funds or vehicles controlled
or managed by such Persons or their respective Affiliates (including, for the avoidance of doubt, where such Person is a partnership,
to its general partner or a successor partnership or fund, or any other funds managed by such partnership); (ii) to a nominee or custodian
of a Person to whom a Transfer would be permitted under clause (i); (iii) in connection with any legal, regulatory or other order; (iv)
to a third party in connection with any non-redemption, backstop arrangement or other similar arrangement, (v) as otherwise mutually agreed
upon between the Sponsor, the Purchaser and the Company, or (vi) to the Purchaser, the Company or the Sponsor; provided, however,
that in the case of clauses (i) through (vi), as a precondition to such Transfer, such transferee must enter into a written agreement
with the Company and the Purchaser agreeing to assume all of the obligations under this Agreement with respect to such Subject Securities
and to be bound by the transfer restrictions set forth in this Agreement (to the extent applicable); provided, further, that, no
Transfer permitted under this Section 1.2 shall relieve Sponsor or any holder of Subject Securities pursuant to a Permitted Transfer
of its obligations under this Agreement.
Section 1.3
New Shares. In the event that (a) any Purchaser Ordinary Shares, Purchaser Warrants or other equity securities of the Purchaser
are issued to the Sponsor after the date of this Agreement pursuant to any stock dividend, stock split, recapitalization, reclassification,
combination or exchange of, on or affecting the Purchaser Ordinary Shares or the Purchaser Warrants owned by the Sponsor or otherwise,
(b) the Sponsor purchases or otherwise acquires beneficial ownership of any Purchaser Ordinary Shares, Purchaser Warrants or other equity
securities of the Purchaser after the date of this Agreement, or (c) the Sponsor acquires the right to vote or share in the voting of
any Purchaser Ordinary Shares or other equity securities of the Purchaser after the date of this Agreement (such Purchaser Ordinary Shares,
Purchaser Warrants or other equity securities of the Purchaser, collectively, the “New Securities”), then such New
Securities acquired or purchased by the Sponsor shall be subject to the terms of this Agreement to the same extent as if they constituted
the Subject Securities owned by the Sponsor as of the date hereof.
Section 1.4
Closing Date Deliverables. On the Closing Date, the Sponsor shall deliver to the Purchaser and the Company a duly executed
copy of the A&R Registration Rights Agreement and the Sponsor Lock-Up Agreement.
Section 1.5
Agreements.
(a)
At any meeting of the Purchaser Shareholders, however called, or at any adjournment thereof, or in any other circumstance in which
the vote, consent or other approval of the Purchaser Shareholders is sought, the Sponsor shall (i) appear at each such meeting or otherwise
cause all of its Subject Securities, which are entitled to vote, to be counted as present thereat for purposes of calculating a quorum
and (ii) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered)
covering, all of its Subject Securities, which are entitled to vote:
(i)
in favor of each Transaction Proposal;
(ii)
against any Alternative Transaction or any proposal relating to an Alternative Transaction (in each case, other than the Transaction
Proposals);
(iii)
against any merger agreement or merger (other than the Business Combination Agreement and the Transactions), consolidation, combination,
sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Purchaser;
(iv)
against any change in the business, management or board of directors of the Purchaser (other than in connection with the Transaction
Proposals or pursuant to the Business Combination Agreement or the Ancillary Documents); and
(v)
against any proposal, action or agreement that would (A) impede, interfere, frustrate, prevent or nullify any provision of this
Agreement, the Business Combination Agreement or the Transactions, (B) result in a breach in any respect of any covenant, representation,
warranty or any other obligation or agreement of the Purchaser under the Business Combination Agreement, (C) result in any of the conditions
set forth in Article VII (Closing Conditions) of the Business Combination Agreement not being fulfilled, (D) result in a breach
of any covenant, representation or warranty or other obligation or agreement of the Sponsor contained in this Agreement or the Purchaser
contained in the Business Combination Agreement or (E) change in any manner the dividend policy or capitalization of, including the voting
rights of any class of capital stock of, the Purchaser.
The Sponsor hereby agrees
that the Sponsor shall not commit or agree to take any action inconsistent with the foregoing.
(b)
The Sponsor shall comply with, and fully perform all of its obligations, covenants and agreements set forth in, the Insider Letter
(as defined below), including the obligations of the Sponsor pursuant to Section 1 therein to not redeem any Purchaser Ordinary Shares
owned by the Sponsor in connection with the Transactions.
Section 1.6
No Challenges. The Sponsor agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions
necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Purchaser, the Company
or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision
of this Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry
into this Agreement, the Business Combination Agreement or the Transactions. Notwithstanding anything herein to the contrary, nothing
in this Agreement shall limit or restrict the ability of the Sponsor to enforce its rights under this Agreement or any other Ancillary
Document to which such Person is a party or seek any other remedies with respect to any breach of this Agreement or such other Ancillary
Document by any other party hereto or thereto, including by commencing any action in connection therewith.
Section 1.7
Further Assurances. The Sponsor shall take, or cause to be taken, all actions and do, or cause to be done, all things reasonably
necessary under applicable Laws, or as reasonably requested by the Company, to effect the actions set forth herein and to consummate the
transactions contemplated hereby on the terms and subject to the conditions set forth herein and the Transactions on the terms and subject
to the conditions set forth in the Business Combination Agreement.
Section 1.8
No Inconsistent Agreement. The Sponsor hereby represents and covenants that the Sponsor has not entered into, and shall
not enter into, any agreement that would restrict, limit or interfere with the performance of the Sponsor’s obligations hereunder.
Section 1.9
Appraisal Rights. The Sponsor hereby waives and agrees not to exercise any rights of appraisal or rights to dissent from
the Transactions that it may have with respect to the Subject Securities under applicable Law.
Section 1.10
Insider Letter. Neither the Sponsor nor the Purchaser shall amend, terminate or otherwise modify that certain letter agreement,
dated as of March 24, 2023, by and among the Purchaser, the Sponsor and certain of the Purchaser’s current and former officers and
directors (the “Insider Letter”) without the Company’s prior written consent.
Section 1.11
Waiver of Anti-Dilution Provision. The Sponsor hereby (but subject to the consummation of the Transactions) waives (for
itself, for its successors, heirs and assigns), to the fullest extent permitted by law and the amended and restated memorandum and articles
of association of the Purchaser (as may be amended from time to time, the “Articles”), any and all anti-dilution rights
with respect to the rate that the Purchaser Class B Ordinary Shares held by the Sponsor convert into Purchaser Class A Ordinary Shares
in connection with the transactions contemplated by the Business Combination Agreement. The waiver specified in this Section 1.11
shall be applicable only in connection with the Transactions and the transactions contemplated by this Agreement (and any Purchaser Class
A Ordinary Shares, shares of Domesticated Purchaser Common Stock or equity-linked securities issued in connection with the Transactions
and the transactions contemplated by this Agreement) and shall be void and of no force and effect if the Business Combination Agreement
shall be terminated for any reason.
Section 1.12
Conversion of Purchaser Class B Ordinary Shares. The Sponsor hereby agrees that, not prior to the Business Day following
the Redemption, and immediately prior to the Domestication, the Purchaser Class B Ordinary Shares held by the Sponsor shall automatically
convert into Purchaser Class A Ordinary Shares pursuant to the Articles. The conversion specified in this Section 1.12 shall be
applicable only in connection with the Transactions and the transactions contemplated by this Agreement and shall be void and of no force
and effect if the Business Combination Agreement shall be terminated for any reason.
Section 1.13
Warrant Forfeiture. The Sponsor hereby agrees to forfeit, effective immediately prior to (and contingent upon) the Closing,
60,000 Purchaser Private Placement Warrants for every $1,000,000 by which (A) the gross proceeds at Closing from the Trust Account (after
giving effect to the Redemption) plus (B) the gross proceeds from the Class A Preferred Unit Investment, the Series A Preferred Stock
Investment and any PIPE Investment are below $50,000,000, provided, that, the notwithstanding anything to the contrary in the Business
Combination Agreement, this Agreement or any other Ancillary Document, the Sponsor shall not be required to forfeit more than 1,500,000
Purchaser Private Placement Warrants.
ARTICLE
II
REPRESENTATIONS AND WARRANTIES
Section 2.1
Representations and Warranties of the Sponsor. The Sponsor represents and warrants as of the date hereof to the Purchaser
and the Company as follows:
(a)
Organization; Due Authorization. The Sponsor is duly organized, validly existing and in good standing as a limited liability
company under the Laws of the jurisdiction in which it is formed, organized or constituted, and the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby are within the Sponsor’s limited liability company
powers and have been duly authorized by all necessary limited liability company actions on the part of the Sponsor. This Agreement has
been duly executed and delivered by the Sponsor and, assuming due authorization, execution and delivery by the other parties to this Agreement,
this Agreement constitutes a legally valid and binding obligation of the Sponsor, enforceable against the Sponsor in accordance with the
terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general
principles of equity affecting the availability of specific performance and other equitable remedies). If this Agreement is being executed
in a representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into this Agreement
on behalf of the Sponsor.
(b)
Ownership. The Sponsor is the record and beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of, and has good
title to, all of the Subject Securities, and there exist no Liens or any other limitation or restriction (including any restriction on
the right to vote, sell or otherwise dispose of such Subject Securities (other than transfer restrictions under the Securities Act)) affecting
any such Subject Securities, other than Liens pursuant to (i) this Agreement, (ii) the Purchaser’s Organizational Documents, (iii)
the Business Combination Agreement, (iv) the Insider Letter, (v) the Sponsor’s Organizational Documents, (vi) agreements between
the Sponsor and its members or (vii) any applicable securities Laws. The Subject Securities are the only equity securities in the Purchaser
owned of record or beneficially by the Sponsor on the date of this Agreement, and none of the Subject Securities are subject to any proxy,
voting trust or other agreement or arrangement with respect to the voting of such Subject Securities, except as provided hereunder and
under the Insider Letter. Other than the Subject Securities, the Sponsor does not hold or own any rights to acquire (directly or indirectly)
any equity securities of the Purchaser or any equity securities convertible into, or which can be exchanged for, equity securities of
the Purchaser.
(c)
No Conflicts. The execution and delivery of this Agreement by the Sponsor does not, and the performance by the Sponsor of
its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of the Sponsor or (ii)
require any consent or approval that has not been given or other action that has not been taken by any Person (including under any Contract
binding upon the Sponsor or the Sponsor’s Subject Securities), in each case, to the extent such consent, approval or other action
would prevent, enjoin or materially delay the performance by the Sponsor of its obligations under this Agreement.
(d)
Adequate Information. The Sponsor has been furnished or given access to adequate information concerning the business and
financial condition of Purchaser and the Company to make an informed decision regarding this Agreement and the Transactions and has independently
and without reliance upon Purchaser or the Company and based on such information as the Sponsor has deemed appropriate, made its own analysis
and decision to enter into this Agreement. The Sponsor acknowledges that Purchaser and the Company have not made and do not make any representation
or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. The Sponsor acknowledges
that the agreements contained herein with respect to the Subject Securities are irrevocable and result in the waiver of any right of the
undersigned to demand appraisal in connection with the Business Combination under applicable Law.
(e)
Litigation. There are no Legal Proceedings pending against the Sponsor, or to the knowledge of the Sponsor threatened against
the Sponsor, before (or, in the case of threatened Legal Proceedings, that would be before) any arbitrator or any Governmental Authority,
which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by the Sponsor of its obligations under
this Agreement.
(f)
Brokerage Fees. Except as described on Section 5.15 (Finders and Broker) of the Purchaser Disclosure Letter, no broker,
finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with
the Transactions based upon arrangements made by the Sponsor, for which the Purchaser or any of its Affiliates may become liable.
(g)
Acknowledgment. The Sponsor understands and acknowledges that each of the Purchaser and the Company is entering into the
Business Combination Agreement in reliance upon the Sponsor’s execution and delivery of this Agreement.
ARTICLE
III
MISCELLANEOUS
Section 3.1
Termination. This Agreement and all of its provisions shall terminate and be of no further force or effect upon the earliest
of (a) the Expiration Time, (b) the liquidation of the Purchaser and (c) the written agreement of the Sponsor, the Purchaser, and the
Company. Upon such termination of this Agreement, all obligations of the parties under this Agreement will terminate, without any liability
or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated hereby, and no party
hereto shall have any claim against another (and no person shall have any rights against such party), whether under contract, tort or
otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement shall not relieve
any party hereto from liability arising in respect of any breach of this Agreement prior to such termination. This ARTICLE III
shall survive the termination of this Agreement.
Section 3.2
Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties
hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations
hereunder will be assigned (including by operation of law) without the prior written consent of the parties hereto.
Section 3.3
Specific Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions
of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that
the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in the chancery court or any other state or federal court within the State of Delaware, this
being in addition to any other remedy to which such party is entitled at law or in equity. In the event that any Action shall be brought
in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is
an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.
Section 3.4
Amendment. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the Purchaser, the Company and the Sponsor.
Section 3.5
Miscellaneous. Sections 9.02 (Notices), 9.05 (Governing Law), 9.06 (Jurisdiction), 9.07 (Waiver
of Jury Trial), 9.09 (Severability), 9.11 (Entire Agreement), 9.12 (Interpretation), 9.13 (Counterparts)
and 9.15 (Waiver of Claims Against Trust) of the Business Combination Agreement are each hereby incorporated into this Agreement
(including any relevant definitions contained in any such Sections), mutatis mutandis.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
BLANK]
IN WITNESS WHEREOF, the Sponsor,
the Purchaser and the Company have each caused this Agreement to be duly executed as of the date first written above.
| |
SPONSOR: |
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|
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Inflection Point Holdings II LLC |
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|
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By: |
/s/ Michael Blitzer |
| |
|
Name: |
Michael Blitzer |
| |
|
Title: |
Managing Member |
[Signature Page to Sponsor Support Agreement]
IN WITNESS WHEREOF, the Sponsor,
the Purchaser and the Company have each caused this Agreement to be duly executed as of the date first written above.
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PURCHASER: |
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|
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Inflection Point Acquisition Corp. II |
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|
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By: |
/s/ Michael Blitzer |
| |
|
Name: |
Michael Blitzer |
| |
|
Title: |
Chairman and Chief Executive Officer |
[Signature Page to Sponsor Support Agreement]
IN WITNESS WHEREOF, the Sponsor,
the Purchaser and the Company have each caused this Agreement to be duly executed as of the date first written above.
| |
COMPANY: |
| |
|
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USA RARE EARTH, LLC |
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|
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By: |
/s/ David Kronenfeld |
| |
|
Name: |
David Kronenfeld |
| |
|
Title: |
Chief Legal Officer |
Exhibit 10.2
Execution Version
FORM OF MEMBER SUPPORT AGREEMENT
This MEMBER SUPPORT AGREEMENT
(this “Agreement”), is dated as of August 21, 2024, by and among Inflection Point Acquisition Corp. II, a Cayman Islands
exempted company limited by shares (which shall domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”),
the Persons set forth on Schedule I hereto (the “Supporting Members”) and USA Rare Earth, LLC, a Delaware limited
liability company (the “Company”). Capitalized terms used but not defined herein shall have the respective meanings
ascribed to such terms in the Business Combination Agreement (as defined below).
WHEREAS, as of the date hereof,
the Supporting Members are the holders of such number and type of Company Securities as are indicated opposite each of their names on
Schedule I attached hereto (collectively, and together with any Company Securities issuable upon conversion, exchange, vesting
or otherwise in respect of such Company Securities, the “Subject Securities”);
WHEREAS, contemporaneously
with the execution and delivery of this Agreement, the Purchaser, the Company and IPXX Merger Sub, LLC, a Delaware limited liability company
and a direct wholly owned subsidiary of the Purchaser, are entering into the Business Combination Agreement (as it may be amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”),
dated as of the date hereof, pursuant to which, among other transactions, the Purchaser and the Company intend to consummate a business
combination; and
WHEREAS, as an inducement
to the Purchaser and the Company to enter into the Business Combination Agreement and to consummate the Transactions, the parties hereto
desire to agree to certain matters as set forth herein.
NOW, THEREFORE, in consideration
of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
ARTICLE
I
Voting and SUPPORT AGREEMENT; COVENANTS
Section 1.1 Binding
Effect of Business Combination Agreement. Each of the Supporting Members hereby acknowledges that he, she or it has read the
Business Combination Agreement and this Agreement and has had the opportunity to consult with his, her or its tax and legal
advisors. Each of the Supporting Members shall be bound by and comply with Sections 6.06 (No Solicitation), 6.15 (Public
Announcements) and 6.16 (Confidential Information) of the Business Combination Agreement (and any relevant definitions
contained in any such Sections) as if such Supporting Member was an original signatory to the Business Combination Agreement with
respect to such provisions.
Section 1.2 New
Shares. In the event that (a) any Company Units or other equity securities of the Company are issued to a Supporting Member
after the date of this Agreement pursuant to any dividend, split, recapitalization, reclassification, combination or exchange of, on
or affecting the Company Securities owned by such Supporting Member or otherwise, (b) a Supporting Member purchases or otherwise
acquires beneficial ownership of any Company Securities after the date of this Agreement, or (c) a Supporting Member acquires the
right to vote or share in the voting of any Company Units or other equity securities of the Company after the date of this Agreement
(such Company Units or other equity securities of the Company, collectively, the “New Securities”), then such New
Securities acquired or purchased by such Supporting Member shall be subject to the terms of this Agreement to the same extent as if
they constituted the Subject Securities owned by such Supporting Member as of the date hereof.
Section 1.3 Supporting
Member Agreements. At any meeting of the members of the Company, however called, or at any adjournment thereof, or in any other
circumstance in which the vote, consent or other approval of the members of the Company is sought, each of the Supporting Members
shall (i) appear at each such meeting or otherwise cause all of its Subject Securities, which are entitled to vote, to be counted as
present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted), or execute and deliver a written consent
(or cause a written consent to be executed and delivered) covering, all of its Subject Securities, which are entitled to vote:
(a) to the extent any
approval or adoption is required or sought, to approve and adopt the Business Combination Agreement and the consummation of the
Transactions;
(b) against any
Alternative Transaction or any proposal relating to an Alternative Transaction;
(c) against any merger
agreement or merger (other than the Business Combination Agreement and the Transactions), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company;
(d) against any change
in the business or board of managers of the Company (other than pursuant to the Business Combination Agreement or the Ancillary
Documents); and
(e) against any
proposal, action or agreement that would (A) impede, interfere, frustrate, prevent or nullify any provision of this Agreement, the
Business Combination Agreement or the Transactions, (B) result in a breach in any respect of any covenant, representation, warranty
or any other obligation or agreement of the Company under the Business Combination Agreement, (C) result in any of the conditions
set forth in Article VII (Closing Conditions) of the Business Combination Agreement not being fulfilled, (D) result in a breach of
any covenant, representation or warranty or other obligation or agreement of such Supporting Member contained in this Agreement or
the Company contained in the Business Combination Agreement or (E) change in any manner the dividend policy or capitalization of,
including the voting rights of any class of capital stock of, the Company.
Each Supporting Member hereby
agrees that he, she or it shall not commit or agree to take any action inconsistent with the foregoing.
Section 1.4 No
Challenges. Each Supporting Member agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all
actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against
Purchaser, the Company or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the
operation of, any provision of this Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the
evaluation, negotiation or entry into this Agreement, the Business Combination Agreement or the Transactions.
Section 1.5 Further
Assurances. Each Supporting Member shall take, or cause to be taken, all actions and do, or cause to be done, all things
reasonably necessary under applicable Laws, or as reasonably requested by the Purchaser or the Company, to effect the actions set
forth herein and to consummate the transactions contemplated hereby on the terms and subject to the conditions set forth herein and
the Transactions on the terms and subject to the conditions set forth in the Business Combination Agreement and the Ancillary
Documents.
Section 1.6 No
Inconsistent Agreement. Each Supporting Member hereby represents and covenants that such Supporting Member has not entered into,
and shall not enter into, any agreement that would restrict, limit, or interfere with the performance of such Supporting
Member’s obligations hereunder. Each Supporting Member agrees to reasonably promptly notify the Purchaser in writing of any
updates to Schedule I hereto after the date hereof and prior to Closing.
Section 1.7 Appraisal
Rights. Each Supporting Member hereby waives and agrees not to exercise any rights of appraisal or rights to dissent from the
Transactions that he, she or it may have with respect to the Subject Securities under applicable Law.
Section 1.8 Consent to
Disclosure. Each Supporting Member hereby consents to the publication and disclosure in the Proxy Statement/Registration
Statement (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities
authorities, any documents or communications provided by the Purchaser or the Company to any Governmental Authority and to Purchaser
Shareholders) of such Supporting Member’s identity and beneficial ownership of the Subject Securities and the nature of such
Supporting Member’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed
appropriate by the Purchaser and the Company, a copy of this Agreement. Each Supporting Member will promptly provide any information
reasonably requested by Purchaser or the Company that is reasonably necessary for any regulatory application or filing made or
approval sought in connection with the Transactions (including filings with the SEC).
ARTICLE
II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations
and Warranties of the Supporting Members. Each Supporting Member, severally and not jointly, represents and warrants as of the
date hereof to the Purchaser and the Company, in each case, only with respect to itself, as follows:
(a) Organization;
Due Authorization. (i) If the Supporting Member is a natural person, he or she has all the requisite power and authority and has
taken all action necessary in order to execute and deliver this Agreement, to perform his or her obligations hereunder and to
consummate the transactions contemplated hereby, and (ii) if the Supporting Member is not a natural person, it is duly organized,
validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated, formed, organized or
constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated
hereby are within such Supporting Member’s corporate, limited liability company or similar organizational powers and have been
duly authorized by all necessary corporate, limited liability company, or similar organizational actions on the part of such
Supporting Member. This Agreement has been duly executed and delivered by such Supporting Member and, assuming due authorization,
execution and delivery by the other parties hereto, this Agreement constitutes a legally valid and binding obligation of such
Supporting Member, enforceable against such Supporting Member in accordance with the terms hereof (except as enforceability may be
limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the
availability of specific performance and other equitable remedies). If this Agreement is being executed in a representative or
fiduciary capacity, the Person signing this Agreement has full power and authority to enter into this Agreement on behalf of such
Supporting Member.
(b) Ownership.
Such Supporting Member is the record and beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of, and has good title to,
all of its Subject Securities, and there exist no Liens or any other limitation or restriction (including any restriction on the
right to vote, sell or otherwise dispose of such Subject Securities (other than transfer restrictions under the Securities Act))
affecting any such Subject Securities, other than Liens pursuant to (i) this Agreement, (ii) the Company’s Organizational
Documents, (iii) the Business Combination Agreement, (iv) if the Supporting Member is not a natural person, the Supporting
Member’s Organizational Documents or (v) any applicable securities Laws. Such Supporting Member’s Subject Securities are
the only securities of the Company owned of record or beneficially by such Supporting Member on the date of this Agreement, and none
of such Subject Securities are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of
such Subject Securities, except as provided hereunder and under the Company’s Organizational Documents. Other than the Subject
Securities, such Supporting Member does not hold or own any rights to acquire (directly or indirectly) any securities of the Company
or any securities convertible into, or which can be exchanged for, securities of the Company.
(c) No
Conflicts. The execution and delivery of this Agreement by such Supporting Member does not, and the performance by such
Supporting Member of its obligations hereunder will not, (i) conflict with or result in a violation of the Organizational Documents
of such Supporting Member, or (ii) require any consent or approval that has not been given or other action that has not been taken
by any third party (including under any Contract binding upon such Supporting Member or such Supporting Member’s Subject
Securities), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the
performance by such Supporting Member of its obligations under this Agreement.
(d) Adequate
Information. Such Supporting Member has been furnished or given access to adequate information concerning the business and
financial condition of Purchaser and the Company to make an informed decision regarding this Agreement and the Transactions and has
independently and without reliance upon the Purchaser or the Company and based on such information as such Supporting Member has
deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Supporting Member acknowledges that the
Purchaser and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Agreement. Such Supporting Member acknowledges that the agreements contained herein
with respect to the Subject Securities held by such Supporting Member are irrevocable and result in the waiver of any right of the
undersigned to demand appraisal in connection with the Business Combination under applicable Law.
(e) Litigation.
There are no Legal Proceedings pending against such Supporting Member or, to the knowledge of such Supporting Member, threatened
against such Supporting Member, before (or, in the case of threatened Legal Proceedings, that would be before) any arbitrator or any
Governmental Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such
Supporting Member of its obligations under this Agreement.
(f) Brokerage
Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other
commission in connection with the Transactions based upon arrangements made by such Supporting Member in his, her or its capacity as
a member of the Company, for which the Company or any of its Affiliates may become liable.
(g) Acknowledgement.
Such Supporting Member understands and acknowledges that each of the Purchaser and the Company is entering into the Business
Combination Agreement in reliance upon the Supporting Members’ execution and delivery of this Agreement.
ARTICLE
III
MISCELLANEOUS
Section 3.1 Termination.
This Agreement and all of its provisions shall terminate and be of no further force or effect upon the earliest of (a) the
Expiration Time, (b) the liquidation of the Company and (c) the written agreement of the Supporting Members, the Purchaser, and the
Company. Upon such termination of this Agreement, all obligations of the parties under this Agreement will terminate, without any
liability or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated
hereby, and no party hereto shall have any claim against another (and no person shall have any rights against such party), whether
under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this
Agreement shall not relieve any party hereto from liability arising in respect of any breach of this Agreement prior to such
termination. This ARTICLE III shall survive the termination of this Agreement.
Section 3.2 Assignment.
This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder
will be assigned (including by operation of law) without the prior written consent of the parties hereto.
Section 3.3 Specific
Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the
parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in the chancery court or any other state or federal court within the State
of Delaware, this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that any
action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives
the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of
any bond in connection therewith.
Section 3.4 Amendment.
This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by the Purchaser, the Company and the Supporting Members.
Section 3.5 Miscellaneous. Sections
9.02 (Notices) (provided that notices to any Supporting Member shall be to such Supporting Member’s address as set
forth in the Company’s books and records), 9.05 (Governing Law), 9.06 (Jurisdiction), 9.07 (Waiver of Jury
Trial), 9.09 (Severability), 9.11 (Entire Agreement), 9.12 (Interpretation), 9.13 (Counterparts) and
9.15 (Waiver of Claims Against Trust) of the Business Combination Agreement are each hereby incorporated into this Agreement
(including any relevant definitions contained in any such Sections), mutatis mutandis.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
BLANK]
IN WITNESS WHEREOF, each of the parties has
caused this Agreement to be duly executed on its behalf as of the day and year first above written.
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PURCHASER: |
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Inflection Point Acquisition Corp. II |
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COMPANY: |
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USA RARE EARTH, LLC |
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[Signature Page to Member Support Agreement]
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IF SUPPORTING MEMBER IS AN ENTITY: |
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[ENTITY NAME] |
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IF SUPPORTING MEMBER IS AN INDIVIDUAL: |
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[Signature Page to Member Support Agreement]
SCHEDULE I1
Supporting Members
| 1 | NTD: To be completed after collection of signatures
from the Supporting Members. |
Exhibit 10.3
Final Form
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”)
is dated as of August [●], 2024, by and among Inflection Point Acquisition Corp. II, a Cayman Islands exempted company (the “Company”),
USA Rare Earth, LLC, a Delaware limited liability company (the “Target”), and the purchaser identified on the signature
pages hereto (including its successors and assigns, the “Purchaser”).
WHEREAS, the Company, the Target and IPXX
Merger Sub, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of the Company (“Merger Sub”),
entered into a Business Combination Agreement, dated as of August [●], 2024 (the “Business Combination Agreement,”
and the transactions contemplated by the Business Combination Agreement, the “Business Combination”), pursuant to which,
among other things, Merger Sub shall merge with and into the Target (the “Merger”), with the Target surviving the Merger
as a direct wholly-owned subsidiary of the Company, as a result of which, the Target will become a direct, wholly owned subsidiary of
the Company;
WHEREAS, in connection with the Business
Combination, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act (as
defined below), the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, securities
of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the
mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Company, the Target and the Purchaser agree as follows:
ARTICLE
1
DEFINITIONS
1.1 Definitions. In addition to
the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings given to
such terms in the Certificate of Designation (as defined herein), and (b) the following terms have the meanings set forth in this Section
1.1:
“Acquiring Person”
shall have the meaning ascribed to such term in Section 4.7.
“Action” means any
action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the applicable party, threatened
against or affecting the applicable party or any of its properties before or by any court, arbitrator, governmental or administrative
agency or regulatory authority (federal, state, county, local or foreign).
“Affiliate” means
any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with
a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors”
means the board of directors of the Company.
“Business Combination”
shall have the meaning ascribed to such term in the recitals.
“Business Combination Agreement”
shall have the meaning ascribed to such term in the recitals.
“Business Day” means
any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to
remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “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 banks in The City of New York are generally
are open for use by customers on such day.
“Certificate of Designation”
means the Certificate of Designation to be filed prior to the Closing by the Company with the Secretary of State of Delaware, in the form
of Exhibit A attached hereto.
“Class A Ordinary Shares”
means the Class A ordinary shares of the Company, par value $0.0001 per share.
“Class A Preferred SPA”
shall have the meaning ascribed to such term in the Business Combination Agreement.
“Class A Preferred Unit Investor”
shall have the meaning ascribed to such term in the Business Combination Agreement.
“Closing” means
the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date” means
the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all
conditions precedent to (i) the Purchaser’s obligations to pay the Subscription Amount and (ii) the Company’s obligations
to deliver the Securities, in each case, have been satisfied or waived.
“Commission” means
the United States Securities and Exchange Commission.
“Common Stock” means,
following the Domestication, the common stock of the Company, par value $[0.0001] per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
“Company Material Adverse
Effect” means any change, event, or occurrence, that, individually or when aggregated with other changes, events, or occurrences
has had a materially adverse effect on the legal authority and ability of the Company to comply with the terms of this Agreement, including
the issuance and sale of the Securities; provided, however, that no change or effect related to any of the following, alone or in combination,
shall be taken into account in determining whether a Company Material Adverse Effect has occurred: (i) the announcement of the Business
Combination Agreement, this Agreement or any other Ancillary Document and consummation of the transactions contemplated hereby and thereby,
including any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement
or consummation) on relationships, contractual or otherwise, with any landlords, customers, suppliers, distributors, partners or employees
of the Company or Merger Sub; (ii) the taking of any action required by the Business Combination Agreement, this Agreement or any other
Ancillary Document; (iii) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar
occurrences), pandemic (including any COVID-19 Measures) or change in climate, (iv) any acts of terrorism or war, the outbreak or escalation
of hostilities, geopolitical conditions, local, national or international political conditions; (v) the Redemption; (vi) any breach of
any covenants, agreements or obligations of any Class A Preferred Units Investor, Purchaser or investor in any PIPE Investment, in each
case who is not Inflection Point Asset Management or an Affiliate of Inflection Point Asset Management, under any Class A Preferred SPA,
this Agreement or other similar agreement related to financing the Company or the Target (including any breach of such Person’s
obligations to fund any amounts thereunder when required); (vii) any change in applicable Laws or GAAP or any interpretation thereof following
the date of this Agreement; or (viii) any change in interest rates or economic, political, business or financial market conditions generally.
“Company Party”
means the Company and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the
Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons.
“Contingent Obligation”
means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease,
dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary
effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with
respect thereto.
“Conversion Shares”
means the shares of Common Stock issued and issuable upon conversion of the Preferred Stock in accordance with the terms of the Certificate
of Designation.
“COVID-19” means
SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemic or disease outbreaks.
“COVID-19 Measures”
means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure,
sequester, safety or other Law, directive, guidelines or recommendations promulgated by any industry group or any Governmental Authority,
including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response
to COVID- 19, including the CARES Act, Families First Act, the Payroll Tax Executive Order and IRS Notices 2020-22, 2020-65 and 2021-11.
“Disqualification Event”
shall have the meaning ascribed to such term in Section 3.1(i).
“Domestication”
means the Company’s migration to and domestication as a Delaware corporation in accordance with Section 388 of the Delaware General
Corporation Law, as amended and the Cayman Islands Companies Act (As Revised) in connection with the closing of the Business Combination.
“Effective Date”
means the first date on which (a) the initial Registration Statement has been declared effective by the Commission registering the resale
of all of the Underlying Shares or (b) all of the Underlying Shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule
144 (but with no volume or other restrictions or limitations including as to manner or timing of
sale or current public information requirements).
“Escrow Account”
means the escrow account to be established by the Escrow Agent into which the Purchaser shall deposit Subscription Amounts.
“Escrow Agent” means
an escrow agent that is mutually acceptable to the Placement Agent, Target and the Company (such acceptance, not to be unreasonably withheld,
delayed or conditioned).
“Escrow Agreement”
means the escrow agreement to be entered into by and among the Company and the Escrow Agent pursuant to which the Purchaser shall deposit
Subscription Amounts with the Escrow Agent to be applied to the transactions contemplated hereunder, in such form as the Company and the
Escrow Agent may agree prior to Closing.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“GAAP” shall mean
generally accepted accounting principles in the United States of America.
“Governmental Entity”
means any nation, state, county, city, town, village, district, or other political jurisdiction of any nature, federal, state, local,
municipal, foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental agency,
branch, department, official, or entity and any court or other tribunal), multi-national organization or body; or body exercising, or
entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature
or instrumentality of any of the foregoing, including any entity or enterprise owned or controlled by a government or a public international
organization or any of the foregoing.
“Indebtedness” of
any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP)
(other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment
obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets
or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing,
in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies
of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary
obligations under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby,
is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in any property or assets (including
accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become
liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of
the kinds referred to in clauses (A) through (G) above.
“Investor Presentation”
means the PowerPoint presentation dated August 2024 detailing the transactions contemplated by the Business Combination Agreement.
“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.
“Liens” means a
lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Losses” means losses,
liabilities, obligations, claims, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation.
“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.
“Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“PIPE Investment”
shall have the meaning ascribed to such term in the Business Combination Agreement.
“Placement Agent”
means Cantor Fitzgerald & Co.
“Preferred Stock”
means the Series A Cumulative Convertible Preferred Stock having the rights, preferences and privileges set forth in the Certificate of
Designation, in the form of Exhibit A hereto.
“Proceeding” means
an action, claim, suit, investigation or proceeding, whether commenced or threatened.
“Purchaser Party”
means the Purchaser and the Purchaser’s directors, officers, shareholders, members, partners, employees and agents (and any other
Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title),
each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and
the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role
of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons.
“Redemption” shall
have the meaning ascribed to such term in the Business Combination Agreement.
“Registration Rights Agreement”
means the Amended and Restated Registration Rights Agreement among the Company, the Purchaser and the other parties thereto, in the form
of Exhibit B attached hereto.
“Registration Statement”
means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale of the
Underlying Shares by the Purchaser as provided for in the Registration Rights Agreement.
“Required Minimum”
means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant
to the Transaction Documents, including any Underlying Shares issuable upon exercise in full of all Warrants (assuming for this purpose,
an exercise price equal to the Floor Price) and conversion in full of all shares of Preferred Stock (assuming for this purpose, a conversion
price equal to the Floor Price), ignoring any conversion or exercise limits set forth therein.
“Rule 144” means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended or interpreted from time to time, or
any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such rule.
“Rule 424” means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended or interpreted from time to time, or
any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such rule.
“SEC Guidance” shall
have the meaning ascribed to such term in the introductory paragraph to Section 3.1.
“SEC Reports” shall
have the meaning ascribed to such term in Section 3.1(m).
“Securities” means
the Preferred Stock, the Warrants and the Underlying Shares.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Short Sales” shall
include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act and all types
of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements),
forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other
transactions through non-U.S. broker dealers or foreign regulated brokers.
“Sponsor” means
Inflection Point Holdings II LLC.
“Stated Value” means
$1,000 per share of Preferred Stock.
“Stock Exchange”
means either The Nasdaq Stock Market LLC or the New York Stock Exchange (or any successors to any of the foregoing).
“Subscription Amount”
shall mean the aggregate amount to be paid for the Preferred Stock and the Warrants purchased hereunder pursuant to the terms of this
Agreement as set forth across from the Purchaser’s name on Schedule A hereto in U.S. dollars and in immediately available funds.
“Target Companies”
means the Target and its subsidiaries.
“Target Material Adverse Effect”
means any event, state of facts, condition, change, development, circumstance, occurrence or effect (collectively, “Events”),
that (i) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business,
assets, results of operations or financial condition of the Target Companies, taken as a whole, or (ii) does or would reasonably be expected
to, individually or in the aggregate, prevent, materially delay or materially impede the ability of the Target Companies to consummate
the transactions contemplated by the Business Combination Agreement; provided, however, that in no event would any of the following, alone
or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Target
Material Adverse Effect”: (a) any change in applicable Laws or GAAP or any interpretation thereof following the date of this
Agreement, (b) any change in interest rates or economic, political, business or financial market conditions generally, (c) the taking
of any action required by the Business Combination Agreement, this Agreement or any other Ancillary Document, (d) any natural disaster
(including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), pandemic (including any COVID-19
Measures) or change in climate, (e) any acts of terrorism or war, the outbreak or escalation of hostilities, geopolitical conditions,
local, national or international political conditions, (f) any failure of the Target Companies to meet any projections or forecasts (provided
that clause (f) shall not prevent a determination that any Event not otherwise excluded from this definition of Target Material Adverse
Effect underlying such failure to meet projections or forecasts has resulted in a Company Material Adverse Effect), (g) any Events generally
applicable to the industries or markets in which any of the Target Companies operate (including increases in the cost of products, supplies,
materials or other goods purchased from third party suppliers), (h) the announcement of the Business Combination Agreement, this Agreement
or any other Ancillary Document and consummation of the transactions contemplated hereby and thereby, including any termination of, reduction
in or similar adverse impact (but in each case only to the extent attributable to such announcement or consummation) on relationships,
contractual or otherwise, with any landlords, customers, suppliers, distributors, partners or employees of the Target Companies, [(i)
any matter set forth on the Company Disclosure Letter], or (j) any action taken by, or at the request of, the Company; provided, further,
that any Event referred to in clauses (a), (b), (d), (e) or (g) above may be taken into account in determining if a Target Material Adverse
Effect has occurred to the extent it has a disproportionate and adverse effect on the business, assets, results of operations or condition
(financial or otherwise) of the Target Companies, taken as a whole, relative to similarly situated companies in the industry in which
the Target Companies conduct their respective operations, but only to the extent of the incremental disproportionate effect on the Target
Companies, taken as a whole, relative to similarly situated companies in the industry in which the Target Companies conduct their respective
operations.
“Target Party” means
each Target Company and each of their respective directors, officers, shareholders, members, partners, employees and agents (and any other
Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title),
each Person who controls any Target Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons.
“Taxes” means 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 in the nature of a tax, together with any
interest and any penalties, additions to tax or additional amounts with respect thereto imposed by a Governmental Authority.
“Trading Day” means
a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transaction Documents”
means this Agreement, the Certificate of Designation, the Warrants, the Registration Rights Agreement, the Escrow Agreement, and all exhibits
and schedules thereto.
“Transfer Agent”
means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, and any successor transfer agent of the
Company.
“Underlying Shares”
means the Conversion Shares and the Warrant Shares.
“Warrants” means,
collectively, the Common Stock purchase warrants delivered to the Purchaser at the Closing in accordance with Section 2.2(a) hereof,
which Warrants shall be exercisable immediately and have a term of exercise equal to 5 years, in the form of Exhibit C attached
hereto.
“Warrant Shares”
means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
2
PURCHASE AND SALE
2.1 Closing. On the Closing Date,
upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase, an aggregate
of [●] shares of Preferred Stock with an aggregate Stated Value equal to the Purchaser’s Subscription Amount as set forth
opposite the Purchaser’s name on Schedule A hereto, and Warrants as determined pursuant to Section 2.2(a). The Company shall
provide written notice (which may be via email) to the Purchaser (the “Closing Notice”) that the Company reasonably
expects the Closing to occur (and the conditions thereto to be satisfied) on a date specified in the notice (the “Scheduled Closing
Date”) not less than five (5) Business Days after the date of the Closing Notice, which Closing Notice shall contain the Flow
of Funds Letter (as defined below) with the Company’s wire instructions for the Escrow Account. The failure of the Closing to occur
on the Scheduled Closing Date shall not terminate this Agreement or otherwise relieve any party of any of its obligations hereunder. Provided
that the Closing Notice is timely delivered in accordance with the foregoing, no later than two (2) Business Days prior to Closing,
the Purchaser shall deliver to the Escrow Agent, via wire transfer or a certified check, immediately available funds equal to the Purchaser’s
Subscription Amount. At the Closing, the Company shall deliver to the Purchaser its shares of Preferred Stock and Warrants as determined
pursuant to Section 2.2(a), and the Company and the Purchaser shall deliver the other items set forth in Section 2.2 deliverable
at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur
by electronic exchange of documents and signatures and the Company shall deliver to the Escrow Agent any required escrow release notice,
duly executed, which shall cause the release of the funds in the Escrow Account to the Company. If this Agreement is terminated prior
to the Closing and any funds have already been sent by the Purchaser to the Escrow Account, or the Closing Date does not occur within
five (5) Business Days after the Scheduled Closing Date specified in the Closing Notice, the Company shall or shall cause the Escrow Agent
to promptly (but not later than seven (7) Business Days after the Scheduled Closing Date specified in the Closing Notice), return the
funds delivered by the Purchaser for payment of the Purchaser’s Subscription Amount by wire transfer in immediately available funds
to the account specified in writing by the Purchaser (provided, that the failure of the Closing Date to occur within such seven (7) Business
Day period and the return of the relevant funds shall not relieve the Purchaser from its obligations under this Agreement for a subsequently
rescheduled Closing Date determined by the Company in good faith and indicated to the Purchaser in a timely delivered subsequent Closing
Notice).
2.2 Deliveries.
(a) On or prior to the Closing
Date, the Company shall deliver or cause to be delivered to the Purchaser the following:
(i) a certificate
evidencing (or reasonable evidence of issuance by book entry, as applicable, of) such aggregate number of shares of Preferred Stock equal
to the Purchaser’s Subscription Amount divided by the Stated Value, registered in the name of the Purchaser and evidence of the
filing and acceptance of the Certificate of Designation from the Secretary of State of Delaware;
(ii) a Warrant
registered in the name of the Purchaser to purchase up to a number of shares of Common Stock equal to 100% of the total number of shares
of Common Stock into which the Purchaser’s shares of Preferred Stock are convertible on the date of Closing, with an exercise price
equal to $12.00, subject to adjustment as set forth therein;
(iii) an email
from the Company setting forth the wire transfer instructions of the Company; and
(iv) the Registration
Rights Agreement duly executed by the Company.
(b) On or prior to the Closing
Date, the Purchaser shall deliver or cause to be delivered to the Company or the Escrow Agent, as applicable, the following:
(i) the Registration
Rights Agreement duly executed by the Purchaser;
(ii) the Purchaser’s
counter-signature to the Warrant described in Section 2.2(a)(ii); and
(iii) the Purchaser’s
Subscription Amount.
2.3 Closing Conditions.
(a) The Closing shall be
subject to the satisfaction, or valid waiver in writing by each of the parties hereto, of the conditions that, on the Closing Date:
(i) all conditions
precedent to the closing of the Business Combination set forth in Article VII of the Business Combination Agreement shall have been satisfied
(as determined by the parties to the Business Combination Agreement) or waived in writing by the Person(s) with the authority to make
such waiver (other than those conditions which, by their nature, are to be satisfied at the closing of the Business Combination pursuant
to the Business Combination Agreement including to the extent that any such condition precedent is, or is dependent upon, the consummation
of the transactions contemplated hereby), and the closing of the Business Combination shall be scheduled to occur substantially concurrently
with the Closing; and
(ii) no governmental
authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation which is then in effect
and has the effect of making the consummation of the transactions contemplated hereby (including, without limitation, the Domestication)
illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby.
(b) The obligation of the
Company to consummate the Closing shall be subject to the satisfaction or valid waiver in writing by the Company of the additional conditions
that, on the Closing Date:
(i) except as
otherwise provided under Section 2.3(b)(ii), all representations and warranties of the Purchaser contained in this Agreement shall
be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or material
adverse effect, which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (except
to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and
warranty shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality
or material adverse effect, which representations and warranties shall be true and correct in all respects) as of such earlier date),
and consummation of the Closing shall constitute a reaffirmation by the Purchaser of each of the representations, warranties and agreements
of the Purchaser contained in this Agreement as of the Closing Date, but without giving effect to consummation of the Business Combination,
or as of such earlier date, as applicable;
(ii) the representations
and warranties of the Purchaser contained in Section 3.2(q) of this Agreement shall be true and correct at all times on or prior
to the Closing Date, and consummation of the Closing shall constitute a reaffirmation by the Purchaser of such representations and warranties;
(iii) the Purchaser
shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement
to be performed, satisfied or complied with by it at or prior to the Closing; and
(iv) the delivery
by the Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(c) The obligation of the
Purchaser to consummate the Closing shall be subject to the satisfaction or valid waiver in writing by the Purchaser of the additional
conditions that, on the Closing Date:
(i) all representations
and warranties of the Company contained in this Agreement shall be true and correct in all material respects (other than representations
and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be
true and correct in all respects) at and as of the Closing Date (except to the extent that any such representation or warranty expressly
speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (other
than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and
warranties shall be true and correct in all respects) as of such earlier date), and consummation of the Closing shall constitute a reaffirmation
by the Company of each of the representations, warranties and agreements of the Company contained in this Agreement as of the Closing
Date, but without giving effect to consummation of the Business Combination, or as of such earlier date, as applicable;
(ii) the Company
shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement
to be performed, satisfied or complied with by it at or prior to the Closing; and
(iii) the delivery
by the Company of the items set forth in Section 2.2(a) of this Agreement.
ARTICLE
3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the
Company. Except as set forth in any Company SEC Reports filed or submitted on or prior to the date hereof, or on or prior to the
Closing Date, as applicable, and provided that no representation or warranty by the Company shall apply to any statement or information
in the SEC Reports that relates to changes to historical accounting policies of the Company in connection with any order, directive, guideline,
comment or recommendation from the Commission or the Company’s auditor or accountant that is applicable to the Company (collectively,
the “SEC Guidance”), nor shall any correction, amendment, revision or restatement of the Company’s financial
statements due wholly or in part to the SEC Guidance or any other accounting matters, nor any other effects that relate to or arise out
of, or are in connection with or in response to, any of the foregoing or any changes in accounting or disclosure related thereto, be deemed
to be a breach of any representation or warranty by the Company, the Company represents and warrants to the Purchaser, as of the date
of this Agreement and as of the Closing Date (or, if such representations and warranties are made with respect to a specified date, as
of such date):
(a) The Company (i) is validly
existing and in good standing under the laws of the jurisdiction of incorporation, (ii) has the requisite power and authority to own,
lease and operate its properties, to carry on its business as it is now being conducted and to enter into and perform its obligations
under this Agreement and the other Transaction Documents, and (iii) is duly licensed or qualified to conduct its business and, if applicable,
is in good standing under the laws of each jurisdiction (other than its jurisdiction of incorporation) in which the conduct of its business
or the ownership of its properties or assets requires such license or qualification, except, with respect to the foregoing clause (iii),
where the failure to be in good standing would not reasonably be expected to have a Company Material Adverse Effect.
(b) As of the Closing Date,
the Securities will be duly authorized and, when issued, paid for and delivered in accordance with the applicable Transaction Documents,
will be validly issued, fully paid and non-assessable, free and clear of all liens or other restrictions (other than those arising under
the Transaction Documents, the Organizational Documents of the Company or applicable securities laws), and will not have been issued in
violation of any preemptive or similar rights created under the Company’s Organizational Documents (as adopted on the Closing Date)
or the laws of its jurisdiction of incorporation.
(c) This Agreement and the
other Transaction Documents has been duly authorized, validly executed and delivered by the Company, and assuming the due authorization,
execution and delivery of the same by the Target and the Purchaser of this Agreement and the other Transaction Documents to which they
are a party and the due authorization, execution and delivery of the same by all other parties to any Transaction Document, this Agreement
and the other Transaction Documents shall constitute the valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors generally and by the availability of equitable remedies.
(d) Assuming the accuracy
of the representations and warranties of the Purchaser set forth in Section 3.2 of this Agreement, the execution and delivery of
this Agreement and the other Transaction Documents, the issuance and sale of the Securities hereunder, the compliance by the Company with
all of the provisions hereof and thereof and the consummation of the transactions contemplated herein and therein will not conflict with
or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of (i) any indenture, mortgage,
deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject, (ii) the Organizational Documents of the Company, or (iii)
any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction
over the Company or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have
a Company Material Adverse Effect.
(e) Assuming the accuracy
of the representations and warranties of the Purchaser set forth in Section 3.2 of this Agreement, the Company is not required
to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution,
delivery and performance of this Agreement or the other Transaction Documents (including, without limitation, the issuance of the Securities),
other than (i) filings required by applicable state securities laws, (ii) the filing of the Registration Statement pursuant to the Registration
Rights Agreement, (iii) filings required by the Commission, (iv) filings required by the Stock Exchange, including with respect to obtaining
shareholder approval, (v) filings and approvals required to consummate the Business Combination as provided under the Business Combination
Agreement, including those required in connection with the Domestication, (vi) the filing of notification under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, if applicable, and (vii) those filings, the failure of which to obtain would not have a Company Material
Adverse Effect
(f) Except for such matters
as have not had and would not have a Company Material Adverse Effect, there is no (i) Action, Proceeding or arbitration before a governmental
authority or arbitrator pending, or, to the knowledge of the Company, threatened in writing against the Company or (ii) judgment, decree,
injunction, ruling or order of any governmental authority or arbitrator outstanding against the Company.
(g) Assuming the accuracy
of the Purchaser’s representations and warranties set forth in Section 3.2 of this Agreement, no registration under the Securities
Act or any state securities (or Blue Sky) laws is required for the offer and sale of the Securities by the Company to the Purchaser.
(h) Neither the Company nor
any person acting on its behalf has engaged in any form of general solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities. The Securities are not being offered in a manner involving a public offering
under, or in a distribution in violation of, the Securities Act or any state securities laws. Neither the Company nor any person acting
on the Company’s behalf has, directly or indirectly, at any time within the past six (6) months, made any offer or sale of any security
or solicitation of any offer to buy any security under circumstances that would cause the offering of the Securities pursuant to
this Agreement to be integrated with prior offerings by the Company for purposes of the Securities Act or any applicable shareholder approval
provisions. Neither the Company nor any person acting on the Company’s behalf has offered or sold any securities, or has taken any
other action, which would reasonably be expected to subject the offer, issuance or sale of the Securities, as contemplated hereby, to
the registration provisions of the Securities Act.
(i) No “bad actor”
disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable
to the Company, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) is applicable.
(j) Except as would not reasonably
be expected to be material to the Company, the Company is in all material respects in compliance with applicable provisions of the Sarbanes-Oxley
Act of 2002, as amended, and the rules and regulations thereunder.
(k) As of the Closing Date,
the Common Stock will be eligible for clearing through The Depository Trust Company (“DTC”), through its Deposit/Withdrawal
At Custodian (DWAC) system, and the Company is eligible and participating in the Direct Registration System (DRS) of DTC with respect
to the Common Stock. The Company’s Transfer Agent is a participant in DTC’s Fast Automated Securities Transfer Program.
(l) The Company is solely
responsible for the payment of any fees, costs, expenses and commissions of the Placement Agent and Affiliates of the Company.
(m) As of their respective
filing dates, or, if amended, as of the date of such amendment, which shall be deemed to supersede such original filing, all reports required
to be filed by the Company with the Commission (the “SEC Reports”) complied in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, and none
of the SEC Reports, when filed, or, if amended, as of the date of such amendment, which shall be deemed to supersede such original filing,
contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there
are no material outstanding or unresolved comments in comment letters received by the Company from the staff of the Division of Corporation
Finance of the Commission with respect to any of the SEC Reports. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto
as in effect at the time of filing, or, if amended, as of the date of such amendment, which shall be deemed to supersede such original
filing, and fairly present in all material respects the financial position of the Company as of and for the dates thereof and the results
of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.
Notwithstanding the foregoing, this representation and warranty shall not apply to any statement or information in the SEC Reports that
relates or arises from the topics referenced in the SEC Guidance, and any restatement, revision or other modification to the SEC Reports
(including any financial statements contained therein) relating to or arising from the SEC Guidance shall not be deemed material noncompliance
for purposes of this Agreement or the other Transaction Documents.
(n) As of the date hereof,
the authorized share capital of the Company is $55,500 divided into 500,000,000 Class A Ordinary Shares, 50,000,000 Class B ordinary shares,
par value $0.0001 per share (the “Class B Ordinary Shares” and, together with the Class A Ordinary Shares, the “Ordinary
Shares”) and 5,000,000 preference shares of a par value of $0.0001 (the “Preference Shares”). As of the date
hereof and immediately prior to the Domestication and prior to giving effect to the Closing and the Business Combination: (i) 25,000,000
Class A Ordinary Shares, 6,250,000 Class B Ordinary Shares and no Preference Shares were issued and outstanding; (ii) 12,500,000 warrants,
each exercisable to purchase one Class A Ordinary Share at $11.50 per share, and 7,650,000 private placement warrants, each exercisable
to purchase one Class A Ordinary Share at $11.50 per share (together “Outstanding Warrants”), were issued and outstanding;
and (iii) no Ordinary Shares were subject to issuance upon exercise of outstanding options. No Outstanding Warrants are exercisable on
or prior to the closing of the Business Combination. All (A) issued and outstanding Ordinary Shares have been duly authorized and validly
issued, are fully paid and non-assessable and are not subject to preemptive rights and (B) Outstanding Warrants have been duly authorized
and validly issued, are fully paid and are not subject to preemptive rights. As of the date hereof, except as set forth above and pursuant
to the Business Combination Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire
from the Company any Ordinary Shares or other equity interests in the Company (collectively, “Equity Interests”) or
securities convertible into or exchangeable or exercisable for Equity Interests. Except as set forth in the Business Combination Agreement,
as of the date hereof, the Company has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity
or debt) in any person, whether incorporated or unincorporated. There are no shareholder agreements, voting trusts or other agreements
or understandings to which the Company is a party or by which it is bound relating to the voting of any Equity Interests, other than (A)
as set forth in the SEC Reports and (B) as contemplated by the Business Combination Agreement. Except as described in the SEC Reports,
there are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that
will be triggered by the issuance of the Securities.
(o) The issued and outstanding
Class A Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act, and are listed for trading on the Stock Exchange
under the symbol “IPXX.” Except as set forth in the SEC Filings or as contemplated by the Business Combination Agreement:
(i) there is no suit, Action, Proceeding or investigation pending or, to the knowledge of the Company, threatened against the Company
by the Stock Exchange or the Commission with respect to any intention by such entity to deregister the Class A Ordinary Shares or prohibit
or terminate the listing of the Class A Ordinary Shares on the Stock Exchange and (ii) the Company has taken no action that is designed
to terminate the registration of the Class A Ordinary Shares under the Exchange Act. Following the Domestication and upon consummation
of the Business Combination, the shares of Common Stock are expected to be registered under the Exchange Act and listed for trading on
the Stock Exchange.
(p) To the knowledge of the
Company, the Company is not, and immediately after receipt of payment for the Securities and consummation of the Business Combination,
will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(q) Neither the Company nor,
to the knowledge of the Company, any agent or other person acting on behalf of the Company has (i) directly or indirectly, used any funds
for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made
any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns
from corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(r) The Company’s accounting
firm is UHY LLP. To the knowledge and belief of the Company, such accounting firm is a registered public accounting firm as required by
the Exchange Act.
(s) There are no disagreements
of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers
formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants and lawyers
which could affect the Company’s ability to perform any of its obligations under any of the Transaction Documents.
(t) The Company acknowledges
and agrees that the Purchaser is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated thereby. The Company further acknowledges that the Purchaser is not acting as a financial advisor or
fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby
and any advice given by the Purchaser or any of its representatives or agents in connection with the Transaction Documents and the transactions
contemplated thereby is merely incidental to the Purchaser’s purchase of the Securities. The Company further represents to the Purchaser
that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent
evaluation of the transactions contemplated hereby by the Company and its representatives.
(u) The Company has not,
and to its knowledge no one acting on its behalf has, taken, directly or indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities.
3.2 Representations and Warranties of the
Purchaser. The Purchaser hereby represents and warrants as of the date of this Agreement and as of the Closing Date (or, if such
representations and warranties are made with respect to a specified date, as of such date):
(a) The Purchaser is either
an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of its jurisdiction of formation
or incorporation with the requisite power and authority to enter into and perform its obligations under the Transaction Documents.
(b) Each Transaction Document
to which it is a party has been duly authorized, executed and delivered by the Purchaser, and assuming the due authorization, execution
and delivery of the same by the Company, each Transaction Document to which the Purchaser is a party shall constitute the valid and legally
binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability
of equitable remedies.
(c) The execution, delivery
and performance of the Transaction Documents, including the purchase of the Securities hereunder, the compliance by the Purchaser with
all of the provisions of the Transaction Documents and the consummation of the transactions contemplated herein will not conflict with
or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets of the Purchaser pursuant to the terms of (i) any indenture, mortgage,
deed of trust, loan agreement, lease, license or other agreement or instrument to which the Purchaser is a party or by which the Purchaser
is bound or to which any of the property or assets of the Purchaser is subject; (ii) the Organizational Documents of the Purchaser; or
(iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having
jurisdiction over the Purchaser or any of its properties that in the case of clauses (i) and (iii), would reasonably be expected to have
a material adverse effect on the Purchaser’s ability to consummate the transactions contemplated by the Transaction Documents, including
the purchase of the Securities.
(d) At the time the Purchaser
was offered the Securities, it was, and as of the date hereof it is, and on each date on which it exercises any Warrants or converts any
shares of Preferred Stock, it will be, an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act),
satisfying the applicable requirements set forth on Annex A hereto, (ii) acquiring the Securities only for its own account and
not for the account of others, or if the Purchaser is subscribing for the Securities as a fiduciary or agent for one or more investor
accounts, each owner of such account is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act)
and the Purchaser has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements,
representations and agreements herein on behalf of each owner of each such account, and (iii) not acquiring the Securities with a view
to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and has provided the Company
with the requested information on Annex A following the signature page hereto).
(e) The Purchaser acknowledges
and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities
Act and that the Securities have not been registered under the Securities Act or the securities laws of any state in the United States
or other jurisdiction and that the Company is not required to register the Securities except as set forth in the Registration Rights Agreement.
The Purchaser acknowledges and agrees that the Securities may not be offered, resold, transferred, pledged or otherwise disposed of by
the Purchaser absent an effective registration statement under the Securities Act, except (i) to the Company or a subsidiary thereof,
(ii) pursuant to an applicable exemption from the registration requirements of the Securities Act (including without limitation a private
resale pursuant to so called “Section 4(a)1½”), or (iii) an ordinary course pledge such as a broker lien over account
property generally, and, in each of clauses (i)-(iii), in accordance with any applicable securities laws of the states and other jurisdictions
of the United States, and that any certificates or account entries representing the Securities shall contain a restrictive legend to such
effect. The Purchaser acknowledges and agrees that the Securities will be subject to these securities law transfer restrictions, and as
a result of these transfer restrictions, the Purchaser may not be able to readily offer, resell, transfer, pledge or otherwise dispose
of the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time.
The Purchaser acknowledges and agrees that the Securities will not be immediately eligible for offer, resale, transfer, pledge or disposition
pursuant to Rule 144 promulgated under the Securities Act until at least one year following the filing of certain required information
with the Commission after the Closing Date. The Purchaser acknowledges and agrees that it has been advised to consult legal counsel prior
to making any offer, resale, pledge or transfer of any of the Securities.
(f) The Purchaser understands
and agrees that it is purchasing the Securities directly from the Company. The Purchaser further acknowledges that there have not been,
and the Purchaser hereby agrees that it is not relying on, any representations, warranties, covenants or agreements made to the Purchaser
by the Company, the Target, the Placement Agent, the Sponsor, any of their respective Affiliates or any control persons, officers, directors,
employees, partners, agents or representatives, any other party to the Business Combination or any other person or entity, expressly or
by implication, other than those representations, warranties, covenants and agreements of the Company and the Target set forth in this
Agreement. The Purchaser agrees that none of (i) any other Purchaser (including the controlling persons, members, officers, directors,
partners, agents, or employees of any such other Purchaser), (ii) the Placement Agent, its Affiliates or any of its or its Affiliates’
control persons, officers, directors or employees, (iii) the Sponsor, its Affiliates (other than the Company), or any of its or its’
Affiliates respective control persons, officers, directors or employees or (iv) any other party to the Business Combination Agreement,
including any such party’s representatives, Affiliates or any of its or their control persons, officers, directors or employees,
that is not a party hereto, shall be liable to the Purchaser pursuant to this Agreement for any action heretofore or hereafter taken or
omitted to be taken by any of them in connection with the purchase of the Securities.
(g) In making its decision
to purchase the Securities, the Purchaser has relied solely upon independent investigation made by the Purchaser and the Company’s
and the Target’s representations in Sections 3.1 and 3.3, respectively, of this Agreement. The Purchaser acknowledges
and agrees that the Purchaser has received such information as the Purchaser deems necessary in order to make an investment decision with
respect to the Securities, including with respect to the Company, the Target Companies and the Business Combination, and made its own
assessment and is satisfied concerning the relevant financial, tax and other economic considerations relevant to the Purchaser’s
investment in the Securities. Without limiting the generality of the foregoing, the Purchaser acknowledges that it has reviewed the Company’s
filings with the Commission. The Purchaser represents and agrees that the Purchaser and the Purchaser’s professional advisor(s),
if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Purchaser and the
Purchaser’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities.
The Purchaser acknowledges that certain information provided by the Company and the Target was based on projections, and such projections
were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business,
economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections.
The Purchaser further acknowledges that the information provided to the Purchaser was preliminary and subject to change, including in
the registration statement and the proxy statement and/or prospectus that the Company intends to file with the Commission in connection
with the Business Combination (which will include substantial additional information about the Company, the Target Companies and the Business
Combination and will update and supersede the information previously provided to the Purchaser). The Purchaser acknowledges and agrees
that none of the Placement Agent, the Sponsor or any of their Affiliates or any of such Person’s or its Affiliate’s control
persons, officers, directors, employees or other representatives, legal counsel, financial advisors, accountants or agents (collectively,
“Representatives”) has provided the Purchaser with any information, recommendation or advice with respect to the Securities
nor is such information, recommendation or advice necessary or desired. None of the Placement Agent, the Sponsor or any of their respective
Affiliates or Representatives has made or makes any representation as to the Company or the Target Companies or the quality or value of
the Securities. In addition, the Company, the Target, the Sponsor, Placement Agent and their respective Affiliates or Representatives
may have acquired non-public information with respect to the Company or the Target Companies which the Purchaser agrees need not be provided
to it. In connection with the issuance of the Securities to the Purchaser, none of the Placement Agent, its Affiliates or the Company,
the Target, the Sponsor or any of their respective Affiliates or Representatives has acted as a financial advisor or fiduciary to the
Purchaser.
(h) The Purchaser became
aware of this offering of the Securities solely by means of direct contact between the Purchaser and the Company or its Affiliates, by
means of direct contact between the Purchaser and the Target or its Affiliates or by means of contact from the Placement Agent, and Securities
were offered to the Purchaser solely by direct contact between the Purchaser and the Company or its Affiliates. The Purchaser did not
become aware of this offering of the Securities, nor were the Securities offered to the Purchaser, by any other means. The Purchaser acknowledges
that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising
(within the meaning of Regulation D of the Securities Act) and (ii) are not being offered in a manner involving a public offering under,
or in a distribution in violation of, the Securities Act, or any state securities laws.
(i) The Purchaser acknowledges
that it is aware that there are substantial risks incident to the purchase and ownership of the Securities, including those set forth
in the SEC Reports. The Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Securities, and the Purchaser has had an opportunity to seek, and has sought, such accounting,
legal, business and tax advice as the Purchaser has considered necessary to make an informed investment decision. The Purchaser (i) is
an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity
transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment
strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase
of the Securities. The Purchaser understands and acknowledges that the purchase and sale of the Securities hereunder meets (i) the exemptions
from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b).
(j) The Purchaser has adequately
analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment
for the Purchaser and that the Purchaser is able at this time and in the foreseeable future to bear the economic risk of a total loss
of the Purchaser’s investment in the Company. The Purchaser acknowledges specifically that a possibility of total loss exists.
(k) The Purchaser understands
and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings
or determination as to the fairness of this investment.
(l) The Purchaser is not
(i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s
Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and
administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated
National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services
indirectly to a non-U.S. shell bank. The Purchaser agrees to provide law enforcement agencies, if requested thereby, such records as required
by applicable law, provided that the Purchaser is permitted to do so under applicable law. If the Purchaser is a financial institution
subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations
(collectively, the “BSA/PATRIOT Act”), the Purchaser maintains policies and procedures reasonably designed to comply
with applicable obligations under the BSA/PATRIOT Act. To the extent required, the Purchaser maintains policies and procedures reasonably
designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, the
Purchaser maintains policies and procedures reasonably designed to ensure that the funds held by the Purchaser and used to purchase the
Securities were legally derived.
(m) No foreign person (as
defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest
(as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Company as a result of the purchase and sale of Securities
hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part
800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Company from and after the Closing as
a result of the purchase and sale of Securities hereunder.
(n) The Purchaser will have
sufficient funds to pay the Subscription Amount pursuant to Section 2.2(b)(iii) of this Agreement and
any expenses incurred by the Purchaser in connection with the transactions contemplated by or in connection with the Transaction Documents;
(ii) has the resources and capabilities (financial or otherwise) to perform its obligations under the Transaction Documents; and (iii)
has not incurred any obligation, commitment, restriction or liability of any kind, absolute or contingent, present or future, which would
impair or adversely affect its ability to perform its obligations under the Transaction Documents.
(o) The Purchaser acknowledges
that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation
(including, without limitation, the Company, the Target, the Sponsor, the Placement Agent or any of their respective Affiliates or any
of their respective or their respective Affiliates’ control persons, officers, directors, employees, agents or representatives),
other than the representations and warranties of the Company and the Target contained in Sections 3.1 and 3.3, respectively,
of this Agreement, in making its investment or decision to invest in the Company. The Purchaser agrees that none of (i) any other Purchaser
or any other Person participating in any other private placement of shares of Common Stock (including the controlling persons, officers,
directors, partners, agents or employees of any such other Person), (ii) the Company, its Affiliates or any of its or their respective
Affiliates’ control persons, officers, directors, partners, agents, employees or representatives, (iii) the Sponsor, its Affiliates
or any of its or their respective Affiliates’ control persons, officers, directors, partners, agents, employees or representatives,
nor (iv) the Placement Agent, its Affiliates or any of its or their respective control persons, officers, directors, partners, agents,
employees or representatives shall be liable to the Purchaser or any other Purchaser pursuant to the Transaction Documents or any other
agreement related to a private placement of Securities for any action heretofore or hereafter taken or omitted to be taken by any of them
in connection with the purchase of the Securities hereunder or thereunder.
(p) No broker or finder is
entitled to any brokerage or finder’s fee or commission to be paid by the Purchaser solely in connection with the sale of the Securities
to the Purchaser.
(q) At all times on or prior
to the Closing Date, the Purchaser has no binding commitment to dispose of, or otherwise transfer (directly or indirectly), any of the
Securities.
(r) The Purchaser hereby
agrees that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with the Purchaser, shall, directly
or indirectly, engage in any hedging activities or execute any Short Sales with respect to the securities of the Company from the date
hereof until the Closing or the earlier termination of this Agreement in accordance with its terms.
(s) Except as expressly disclosed
in a Schedule 13D or Schedule 13G (or amendments thereto) filed by the Purchaser with the Commission with respect to the beneficial ownership
of the Company’s outstanding securities prior to the date hereof, the Purchaser is not currently (and at all times through Closing
will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of equity
securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).
(t) The Purchaser acknowledges
that (i) the Company, the Target Companies, the Sponsor and the Placement Agent, and any of their respective Affiliates, control persons,
officers, directors, employees, agents or representatives currently may have, and later may come into possession of, information regarding
the Company and the Target Companies that is not known to the Purchaser and that may be material to a decision to purchase the Securities,
(ii) the Purchaser has determined to purchase the Securities notwithstanding its lack of knowledge of such information, and (iii) none
of the Company, the Target Companies, the Sponsor or the Placement Agent or any of their respective Affiliates, control persons, officers,
directors, employees, agents or representatives shall have liability to the Purchaser, and the Purchaser hereby, to the extent permitted
by law, waives and releases any claims it may have against the Company, the Target Companies, the Sponsor, the Placement Agent and their
respective Affiliates, control persons, officers, directors, employees, agents or representatives, with respect to the nondisclosure of
such information.
(u) The Purchaser acknowledges
its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.
(v) The Purchaser acknowledges
and is aware that the Placement Agent is acting as financial advisor to the Company in connection with the Business Combination.
3.3 Representations and Warranties of the
Target. The Target hereby represents and warrants to the Purchaser as of the date of this Agreement and as of the Closing Date
(or, if such representations and warranties are made with respect to a specified date, as of such date):
(a) Each of the Target Companies
is duly organized and validly existing and in good standing under the laws of the jurisdiction in which it is formed, and has the requisite
power and authority to own its properties and to carry on its business as now being conducted and as presently proposed to be conducted.
Each of the Target Companies is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which
its or their ownership of property or the nature of the business conducted by it or them makes such qualification necessary, except to
the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Target Material Adverse
Effect.
(b) The Target has the requisite
power and authority to enter into and perform its obligations under the Business Combination Agreement, this Agreement and the other Transaction
Documents. The execution and delivery of the Business Combination Agreement, this Agreement and the other Transaction Documents by the
Target, and the consummation by the Target of the transactions contemplated hereby and thereby have been duly authorized by the Target’s
board of directors or equivalent governing body, and no further filing, consent or authorization is required by the Target, its managers
or its equity holders or other governing body. The Business Combination Agreement and this Agreement have been, and the other Transaction
Documents to which it is a party will be prior to the Closing, duly executed and delivered by the Target, and each constitutes the legal,
valid and binding obligations of the Target, enforceable against the Target in accordance with its respective terms, except as
such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as
rights to indemnification and to contribution may be limited by federal or state securities law.
(c) Assuming the accuracy
of the representations and warranties of the Purchaser set forth in Section 3.2 of this Agreement, the execution and delivery of
this Agreement and the other Transaction Documents, the compliance by the Target with all of the provisions hereof and thereof and the
consummation of the transactions contemplated herein and therein will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Target pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease,
license or instrument to which the Target is a party or by which the Target is bound or to which any of the property or assets of the
Target is subject, (ii) the Organizational Documents of the Target, or (iii) any statute or any judgment, order, rule or regulation of
any court or governmental agency or body, domestic or foreign, having jurisdiction over the Target or any of its properties that, in the
case of clauses (i) and (iii), would reasonably be expected to have a Target Material Adverse Effect.
(d) Assuming the accuracy
of the representations and warranties of the parties to this Agreement, the Target Companies are not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other
governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this
Agreement or the other Transaction Documents (including, without limitation, the issuance of the Securities), other than (i) filings required
by (x) applicable state securities laws and (y) federal antitrust laws and (ii) those filings, the failure of which to obtain would not
have a Company Material Adverse Effect.
(e) Disclosure. The
information and materials previously provided by or on behalf of the Target to the Purchaser (if any) in connection with the offer and
sale of the Securities, have been prepared in a good faith effort by the Target to describe the Target Companies’ present and proposed
products. The Target acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in Section 3.2. Notwithstanding the foregoing,
the Target Companies make no representation, warranty or covenant with respect to any information supplied by or on behalf of the Company,
the Purchaser or its or their respective Affiliates.
3.4 Additional Representations and Warranties
of the Target. Subject to the qualifications, exceptions and disclosures related thereto in the Business Combination Agreement,
the Target hereby makes each of the representations and warranties of the Company (as defined in the Business Combination Agreement) set
forth in the fully-executed Business Combination Agreement (as if such representations and warranties were initially made to the Purchaser
and set forth in this Agreement in their entirety, mutatis mutandis).
ARTICLE
4
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer Restrictions.
(a) The Securities may only
be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than pursuant
to an effective registration statement or Rule 144, to the Company or to an Affiliate of the Purchaser or in connection with a pledge
as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel
selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory
to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act.
As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and, if permitted pursuant
to the terms thereof, the Registration Rights Agreement and shall have the rights and obligations of the Purchaser under this Agreement
and the Registration Rights Agreement, if a party thereto.
(b) The Purchaser agrees
to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities in the following form:
NEITHER THIS SECURITY NOR THE SECURITIES INTO
WHICH THIS SECURITY IS CONVERTIBLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The Company acknowledges and agrees that the Purchaser
may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in
some or all of the Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under
the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement,
the Purchaser may transfer pledged or secured Securities to the pledgees or secured parties; provided, however, that, as a prerequisite
to such pledge, the Purchaser shall (x) provide notice to the Company of such pledge or transfer at least five (5) Business Days prior
thereto and (y) cause to be delivered to the Company customary legal opinions of legal counsel of the pledgee, secured party and pledgor
as shall be reasonably requested by the Company in connection therewith. Thereafter, at the Purchaser’s expense, the Company will
execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with
a pledge or transfer of the Securities, including, if the Securities are subject to registration pursuant to the Registration Rights Agreement,
the preparation and filing of any required prospectus supplement under Rule 424(b) under the Securities Act or other applicable provision
of the Securities Act to appropriately amend the list of selling securityholders thereunder.
(c) Certificates (or reasonable
evidence of issuance by book entry, as applicable) evidencing the Underlying Shares shall not contain any legend (including the legend
set forth in Section 4.1(b) hereof): (i) while a registration statement (including the Registration Statement) covering the resale
of such security is effective under the Securities Act, (ii) following any sale of such Underlying Shares pursuant to Rule 144 or (iii)
as otherwise provided in the Certificate of Designation. The Company shall use commercially reasonable efforts to cause its counsel to
issue a legal opinion to the Transfer Agent or the Purchaser promptly after the Effective Date if required by the Transfer Agent to effect
the removal of the legend hereunder or if requested by the Purchaser, respectively, in each case, if the proposed sale is to be made pursuant
to an effective registration statement or subject to an exemption from registration under the federal securities laws. If all or any shares
of Preferred Stock are converted or any portion of a Warrant is exercised at a time when there is an effective registration statement
to cover the resale of the Underlying Shares, or if such Underlying Shares may be sold under Rule 144 and the Company is then in compliance
with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), or if the Underlying Shares may
be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under
required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to such Underlying Shares and without volume or manner-of-sale restrictions
or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission) or as provided in the Certificate of Designation or Warrants, then such Underlying
Shares shall be issued free of all legends. The Company agrees that following the Effective Date or at such time as such legend is no
longer required under this Section 4.1(c), it will, no later than the number of Trading Days comprising the Standard Settlement
Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate (or reasonable evidence
of issuance by book entry, as applicable) representing Underlying Shares, as applicable, issued with a restrictive legend, deliver or
cause to be delivered to the Purchaser a certificate (or reasonable evidence of issuance by book entry, as applicable) representing such
shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions
to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4.1. Certificates for Underlying Shares
subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s
prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of delivery of a certificate (or reasonable evidence of issuance by book entry, as applicable)
representing Underlying Shares, as applicable, issued with a restrictive legend.
(d) The Purchaser agrees
with the Company that the Purchaser will sell any Securities pursuant to either the registration requirements of the Securities Act, including
any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a Registration
Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive
legend from certificates (or reasonable evidence of issuance by book entry, as applicable) representing Securities as set forth in this
Section 4.1 is predicated upon the Company’s reliance upon this understanding.
4.2 Acknowledgment of Dilution.
The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding shares of Common Stock, which dilution
may be substantial under certain market conditions. The Company further acknowledges that its obligations under the Transaction Documents,
including, without limitation, its obligation to issue the Underlying Shares pursuant to the Transaction Documents, are unconditional
and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution
or any claim the Company may have against the Purchaser and regardless of the dilutive effect that such issuance may have on the ownership
of the other stockholders of the Company.
4.3 Furnishing of Information; Public Information.
Until the time that the Purchaser does not own any Securities, the Company shall use commercially reasonable efforts to maintain the registration
of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file all reports required to be filed by the Company
after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange
Act.
4.4 Integration. The Company shall
not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities
Act of the sale of the Securities or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations
of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction unless stockholder
approval is obtained before the closing of such subsequent transaction.
4.5 Conversion and Exercise Procedures.
Each of the form of Notice of Exercise included in the Warrants and the form of Notice of Conversion included in the Certificate of Designation
set forth the totality of the procedures required of the Purchaser in order to exercise the Warrants or convert the Preferred Stock. Without
limiting the preceding sentences, no ink-original Notice of Exercise or Notice of Conversion shall be required, nor shall any medallion
guarantee (or other type of guarantee or notarization) of any Notice of Exercise or Notice of Conversion form be required in order to
exercise the Warrants or convert the Preferred Stock. No additional legal opinion, other information or instructions shall be required
of the Purchaser to exercise its Warrants or convert its Preferred Stock. The Company shall honor exercises of the Warrants and conversions
of the Preferred Stock and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the
Transaction Documents.
4.6 Securities Laws Disclosure; Publicity.
The Company and the Target shall (a) within four Business Days of the date of the entry into the Business Combination Agreement (i) issue
a press release disclosing the material terms of the transactions contemplated hereby, and (ii) file a Current Report on Form 8-K, including
the Transaction Documents and the Investor Presentation as exhibits thereto, with the Commission and (b) use their commercially reasonable
efforts to prepare and file a registration statement and proxy statement and/or prospectus with the Commission in connection with the
Business Combination as promptly as practicable (11:59 P.M Eastern Time on the date of the filing of such registration statement and proxy
statement and/or prospectus, the “Cleanse Time”). From and after the Cleanse Time, the Company represents to the Purchaser
that it shall have publicly disclosed all material, non-public information, as of immediately prior to the Cleanse Time, delivered to
the Purchaser by the Company, the Target or any of their respective officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. Notwithstanding the foregoing, neither the Company nor the Target shall publicly disclose the
name of the Purchaser, or include the name of the Purchaser in any filing with the Commission or any regulatory agency or Trading Market,
without the prior written consent of the Purchaser (not to be unreasonably withheld, delayed or conditioned), except (a) as required
by federal securities law or requested by the staff of the Commission in connection with (i) any filings in connection with the Business
Combination, (ii) any registration statement contemplated by the Registration Rights Agreement and (iii) the filing of final Transaction
Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the
Company shall provide the Purchaser with prior notice of such disclosure permitted under this clause (b).
4.7 Stockholder Rights Plan. No
claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that exclusively as a result of the
transactions contemplated by this Agreement the Purchaser is an “Acquiring Person” under any control share acquisition,
business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in
effect or hereafter adopted by the Company, or that the Purchaser could be deemed to trigger the provisions of any such plan or arrangement,
by virtue of receiving Securities under the Transaction Documents.
4.8 Non-Public Information. From
and after the Cleanse Time, the Company and the Target covenant and agree that neither they, nor any other Person acting on their behalf
will provide the Purchaser or its agents or counsel with any information that constitutes, or the Company and the Target reasonably believe
constitutes, material non-public information, unless prior thereto the Purchaser shall have consented to the receipt of such information
and agreed with the Company and the Target to keep such information confidential. To the extent that, after the Cleanse Time, the Company,
the Target or any of their respective officers, director, agents, employees or Affiliates delivers any material, non-public information
to the Purchaser without the Purchaser’s consent, the Company and the Target hereby covenant and agree that the Purchaser shall
not have any duty of trust or confidentiality to the Company, the Target or any of their respective officers, directors, agents, employees
or Affiliates, or a duty to the Company, the Target or any of their respective officers, directors, agents, employees or Affiliates not
to trade while aware of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To
the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding
the Company or the Target, the Company shall if reasonably practicable simultaneously file such notice with the Commission pursuant to
a Current Report on Form 8-K. The Company and the Target understand and confirm that the Purchaser shall be relying on the foregoing covenants
in effecting transactions in securities of the Company.
4.9 Use of Proceeds. The Company
shall use the net proceeds from the sale of the Securities hereunder for general corporate and working capital purposes, in the Company’s
exclusive discretion.
4.10 Indemnification.
(a) Subject to the provisions
of this Section 4.10, the Company will indemnify and hold each Purchaser Party harmless from any and all Losses that any such Purchaser
Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants or agreements
made by the Company in this Agreement or in the other Transaction Documents (unless such Loss is primarily based upon a material breach
of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings
such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws
or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct).
(b) Subject to the provisions
of this Section 4.10, the Target will indemnify and hold each Purchaser Party, harmless from any and all Losses that any such Purchaser
Party may suffer or incur as a result of or relating to any breach of any of the representations and warranties of the Target Companies
found exclusively in Section 3.3, covenants or agreements made by the Target in this Agreement or in the other Transaction Documents
(unless such Loss is primarily based upon a material breach of such Purchaser Party’s representations, warranties or covenants under
the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations
by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which is finally judicially determined
to constitute fraud, gross negligence or willful misconduct).
(c) Subject to the provisions
of this Section 4.10, the Purchaser will, severally and not jointly, indemnify and hold (i) each Company Party and (ii) each Target
Party, harmless from any and all Losses that any such Company party or Target Party (as applicable) may suffer or incur as a result of
or relating to any breach of any of the representations, warranties, covenants or agreements made by such Purchaser in this Agreement
or in the other Transaction Documents (unless such Loss is primarily based upon a material breach of such Company Party’s or Target
Party’s (as applicable) representations, warranties or covenants under the Transaction Documents or any agreements or understandings
such Company Party or Target Party may have with any such stockholder or any violations by such Company Party or Target Party (as applicable)
of state or federal securities laws or any conduct by such Company Party or Target Party (as applicable) which is finally judicially determined
to constitute fraud, gross negligence or willful misconduct).
(d) If any Action or Proceeding
shall be brought against any Person in respect of which indemnity may be sought pursuant to this Agreement, such Person (the “Indemnified
Party”) shall promptly notify the Person against whom such indemnity may be sought (the “Indemnifying Party”)
in writing, but the omission to notify such Indemnifying Party will not relieve the Indemnifying Party from any liability that it may
have to any Indemnified Party under this Section 4.10 unless, and only to the extent that, such omission results in the forfeiture
of substantive rights or defenses by the Indemnifying Party. The Indemnifying Party shall have the right to assume the defense thereof
with counsel of its own choosing reasonably acceptable to the Indemnified Party. Any Indemnified Party shall have the right to employ
separate counsel in any such Action or Proceeding and participate in the defense thereof, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the
Indemnifying Party in writing, (ii) the Indemnifying Party has failed after a reasonable period of time to assume such defense and to
employ counsel or (iii) in such Action or Proceeding there is, in the reasonable opinion of counsel, a material conflict on any material
issue between the position of the Indemnifying Party and the position of such Indemnified Party, in which case the Indemnifying Party
shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Indemnifying Party shall not
be liable for any settlement of any Proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability
by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect
any settlement of any pending or threatened Proceeding in respect of which any Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject matter of such Proceeding.
4.11 Reservation and Listing of Securities.
(a) Commencing on the Closing
Date, the Company shall maintain a reserve of the Required Minimum from its duly authorized shares of Common Stock for issuance pursuant
to the Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.
(b) If, on any date following
the Closing Date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than 100% of (i) the
Required Minimum on such date, minus (ii) the number of shares of Common Stock previously issued pursuant to the Transaction Documents,
then the Board of Directors shall use commercially reasonable efforts to amend the Company’s certificate or articles of incorporation
to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time (minus the number
of shares of Common Stock previously issued pursuant to the Transaction Documents), as soon as possible and in any event not later than
the 75th day after such date, provided that the Company will not be required
at any time to authorize a number of shares of Common Stock greater than the maximum remaining number of shares of Common Stock that could
possibly be issued after such time pursuant to the Transaction Documents.
(c) The Company shall, as
applicable: (i) promptly after the Closing Date and in connection with the registration with the Commission of the Underlying Shares,
in the manner required by the principal Trading Market, prepare and file with such Trading Market an additional shares listing application
covering a number of shares of Common Stock at least equal to the Required Minimum on the date of such application, (ii) take all steps
reasonably necessary to cause such shares of Common Stock to be approved for listing or quotation on such Trading Market as soon as practicable
thereafter and to provide to the Purchaser evidence of such listing or quotation and (iii) use commercially reasonable efforts to maintain
the listing or quotation of such Common Stock on any date at least equal to the Required Minimum on such date on such Trading Market or
another Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository
Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository
Trust Company or such other established clearing corporation in connection with such electronic transfer.
(d) At the extraordinary
general meeting of shareholders of the Company to be held to obtain shareholder approval of inter alia the Business Combination,
the Company shall present to its shareholders a proposal providing for the approval of the issuance of all of the Securities in compliance
with the rules and regulations of the principal Trading Market (without regard to any limitation on conversion or exercise thereof), with
the recommendation of the Company’s Board of Directors that such proposal be approved, and the Company shall solicit proxies from
its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed
proxyholders shall vote their proxies in favor of such proposal.
4.12 Certain Transactions and Confidentiality.
The Purchaser covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute
any purchases or sales of any of the Company’s securities during the period commencing with the execution of this Agreement and
ending at the Cleanse Time. The Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly
disclosed by the Company pursuant to the initial press release and the Current Report on Form 8-K as described in Section 4.6,
the Purchaser will maintain the confidentiality of the existence and terms of this transaction. Notwithstanding the foregoing, and notwithstanding
anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that, (i) the Purchaser does not make
any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after
the Cleanse Time and (ii) the Purchaser shall not be restricted or prohibited from effecting any transactions in any securities of the
Company in accordance with applicable securities laws from and after the Cleanse Time. Notwithstanding the foregoing, if the Purchaser
is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Purchaser’s assets and
the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of
the Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by this Agreement.
4.13 Blue Sky Filings. The Company
shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Securities
for, sale to the Purchaser at the Closing under applicable securities or “Blue Sky” laws of the states of the United States.
4.14 Lock-up Agreements. The Company
shall at no time enter into, or allow, any amendment to or modification of the Insider Letter or any lock-up or similar agreement entered
into with any of the stockholders of the Company or any other Person or directly or indirectly waive or, except as permitted by its Organizational
Documents, release any such Person subject to any of the foregoing from any of the restrictions imposed therein (including by shortening
any applicable lock-up period). If any party to any lock-up or similar agreement breaches any provision of the lock-up or similar agreement,
the Company shall promptly use its best efforts to seek specific performance of the terms of such lock-up or similar agreement.
ARTICLE
5
MISCELLANEOUS
5.1 Termination. This Agreement
shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate
without any further liability on the part of any party in respect hereof, upon the earlier to occur of (a) the mutual written agreement
of the parties hereto to terminate this Agreement, or (b) the termination (for any reason) of the Business Combination Agreement by any
party to the same. Additionally, (i) the Company may terminate this Agreement with respect to the Purchaser if any of the conditions set
forth in Section 2.3(a) applicable to the Purchaser shall have become incapable of fulfillment, and shall not have been waived
by the Company; and (ii) the Purchaser may terminate this Agreement if (X) any of the conditions set forth in Section 2.3(b) shall
have become incapable of fulfillment, and shall not have been waived by the Purchaser or (Y) the Closing shall not have occurred on or
prior to the date on which the Target is permitted to terminate the Business Combination Agreement pursuant to Section 8.01(d) of the
Business Combination Agreement. Notwithstanding the foregoing, nothing herein will relieve any party from liability for any intentional
breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses,
liabilities or damages arising from such intentional breach; provided, that in the event that the Business
Combination Agreement is ever terminated by the Company and/or the Target for any reason, the Purchaser hereby agrees not to indirectly
assert a claim against the Target by funding the Company or any other party to assert any such claim.
5.2 Fees and Expenses. Except as
expressly set forth in the Transaction Documents, each party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement and the Transaction Documents. The Company shall pay all Transfer Agent fees (including, without limitation,
any fees required for same-day processing of any instruction letter delivered by the Company and any conversion notice delivered by a
Purchaser), stamp taxes and other Taxes and duties levied in connection with the delivery of any Securities to the Purchaser.
5.3 Entire Agreement. The Transaction
Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which
the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and all notices
or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email at the e-mail address
as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading
Day after the time of transmission, if such notice or communication is delivered via email attachment at the e-mail address as set forth
on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading
Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5 Amendments; Waivers. No provision
of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment,
by the Company, the Target and the Purchaser or, in the case of a waiver, by the Company, the Target or the Purchaser, as the case may
be, dependent on the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right.
5.6 Headings. The headings herein
are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
5.7 Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Neither the Company
nor the Target may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other and the
Purchaser (other than by merger). The Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser
assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities,
by the provisions of the Transaction Documents that apply to the “Purchaser.”
5.8 No Third-Party Beneficiaries.
The Placement Agent shall be the third party beneficiary of the representations and warranties of the Company in Section 3.1 hereof
and with respect to the representations and warranties of the Purchaser in Section 3.2 hereof. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.10 and this Section 5.8.
5.9 Governing Law. All questions
concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed
and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated
by this Agreement and any other Transaction Documents (other than the Certificate of Designation) (whether brought against a party hereto
or its respective Affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively
in the state and federal courts sitting in the State of Delaware. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the State of Delaware for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents,
other than the Certificate of Designation), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient
venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents,
then, in addition to the obligations of the parties under Section 4.10, the prevailing party in such Action or Proceeding shall
be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Action or Proceeding.
5.10 Survival. The representations
and warranties contained in Section 3.1, Section 3.2 and Section 3.3 herein shall survive the Closing and the delivery
of the Securities. The representations and warranties contained in Section 3.4 herein shall not survive the Closing and the delivery
of the Securities.
5.11 Execution. This Agreement may
be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need
not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf” format data file,
such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with
the same force and effect as if such “.pdf” signature page were an original thereof.
5.12 Severability. If any term,
provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ
an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission and Withdrawal Right.
Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents,
whenever the Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform
its related obligations within the periods therein provided, then the Purchaser may rescind or withdraw, in its sole discretion from time
to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future
actions and rights; provided, however, that, in the case of (x) a rescission of a conversion of the Preferred
Stock, the Purchaser shall be required to return any shares of Common Stock subject to any such rescinded conversion or (y) a recission
of an exercise of a Warrant, the Purchaser shall be required to return any shares of Common Stock subject to any exercise notice concurrently
with the return to the Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration of the Purchaser’s
right to acquire such shares pursuant to the Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing
such restored right).
5.14 Replacement of Securities.
If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to
be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor,
a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction.
The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including
customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies. In addition to being
entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser and the Company will be
entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation
for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not
to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate. For the avoidance
of doubt, Section 4.10 shall be the exclusive remedy for any Losses resulting from a breach of any of the representations and warranties
contained in ARTICLE 3 of this Agreement, in each case exclusively to the extent such Losses arise during the survival period of such
representations and warranties pursuant to the terms of this Agreement.
5.16 Payment Set Aside. To the extent
that the Company makes a payment or payments to the Purchaser pursuant to any Transaction Document or the Purchaser enforces or exercises
its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid
or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy
law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made
or such enforcement or setoff had not occurred.
5.17 Usury. To the extent it may
lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts
to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection
with any Action or Proceeding that may be brought by the Purchaser in order to enforce any right or remedy under any Transaction Document.
Notwithstanding any provision to the contrary contained in any Transaction Document, it is expressly agreed and provided that the total
liability of the Company under the Transaction Documents for payments in the nature of interest shall not exceed the maximum lawful rate
authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate
of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest that the Company may be
obligated to pay under the Transaction Documents exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest
allowed by law and applicable to the Transaction Documents is increased or decreased by statute or any official governmental action subsequent
to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to the Transaction Documents
from the effective date thereof forward, unless such application is precluded by applicable law. If under any circumstances whatsoever,
interest in excess of the Maximum Rate is paid by the Company to the Purchaser with respect to Indebtedness evidenced by the Transaction
Documents, such excess shall be applied by the Purchaser to the unpaid principal balance of any such Indebtedness or be refunded to the
Company, the manner of handling such excess to be at the Purchaser’s election.
5.18 Liquidated Damages. The Company’s
obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of
the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact
that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been
canceled.
5.19 Saturdays, Sundays, Holidays, etc.
If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business
Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.20 Construction. The parties agree
that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore,
the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and
shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. In this Agreement,
unless the context otherwise requires: (i) whenever required by the context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii)
“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”; and (iii)
the words “herein”, “hereto” and “hereby” and other words of similar import in this Agreement shall
be deemed in each case to refer to this Agreement as a whole and not to any particular portion of this Agreement.
5.21 Trust Account Waiver. The Purchaser
hereby acknowledges that, as described in the Company’s prospectus relating to its initial public offering (the “IPO”)
dated May 24, 2023 available at www.sec.gov, the Company has established a trust account (the “Trust Account”) containing
the proceeds of the IPO and from certain private placements occurring simultaneously with the IPO (including interest accrued from time
to time thereon) for the benefit of the Company, its public shareholders and certain other parties. For and in consideration of the Company
entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Purchaser on behalf of itself and each of its affiliates and subsidiaries, and each of its and their employees, agents, representatives
and any other person or entity acting on its and their behalf hereby (a) agrees that it does not now and shall not at any time hereafter
have any right, title, interest or claim of any kind in or to any assets held in the Trust Account, and shall not make any claim against
the Trust Account, arising out or as a result of, in connection with or relating in any way to this Agreement, and regardless of whether
such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred
to hereafter as the “Released Claims”), (b) irrevocably waives any Released Claims that it may have against the Trust
Account now or in the future as a result of, or arising out of, this Agreement, and (c) agrees that it will not seek recourse against
the Trust Account as a result of, in connection with or relating in any way to this Agreement; provided, however, that nothing
in this Section 5.21 shall be deemed to limit the Purchaser’s right to distributions from the Trust Account in accordance
with the Company’s memorandum and articles of association in respect of any redemptions by the Purchaser in respect of shares of
Common Stock acquired by any means other than pursuant to this Agreement.
5.22 NO LIABILITY UPON GOOD FAITH TERMINATION.
OTHER THAN WITH RESPECT TO ANY LIABILITIES ARISING PURSUANT TO SECTION 4.10 AND/OR SECTION 5.2 ABOVE, NONE OF THE COMPANY,
TARGET, ANY OF THEIR AFFILIATES, OR ANY OTHER PARTY TO THE BUSINESS COMBINATION AGREEMENT, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EQUITYHOLDERS, MANAGERS, MEMBERS, ADVISORS OR LEGAL COUNSEL SHALL HAVE ANY LIABILITY (INCLUDING, BUT NOT LIMITED TO, AS A RESULT OF POTENTIAL
LOST PROFITS AND OPPORTUNITIES) TO THE PURCHASER AS A RESULT OF THE TERMINATION OF THIS AGREEMENT AS A RESULT OF THE GOOD FAITH TERMINATION
OF THE BUSINESS COMBINATION AGREEMENT BECAUSE OF A FAILURE OF A CLOSING CONDITION TO BE MET (SOLELY TO THE EXTENT SUCH FAILURE IS OUTSIDE
OF THE CONTROL OF THE TARGET OR THE COMPANY, BUT REGARDLESS OF WHETHER THE BUSINESS COMBINATION AGREEMENT IS TERMINATED BY THE COMPANY
OR TARGET).
5.23 WAIVER OF JURY TRIAL. IN ANY ACTION,
SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO
THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY
JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties hereto have caused
this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| Inflection Point ACQUISITION CORP. II |
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Address for Notice: |
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167 Madison Avenue, Suite 205 #1017 |
| By: |
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New York, New York 10016 |
| Name: |
Michael Blitzer |
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| Title: |
Chief Executive Officer |
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Email: |
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| With a copy to (which shall not constitute notice): |
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White & Case LLP
1221 Avenue of the Americas
New York, New York 10020 |
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| Attn: Joel L. Rubinstein |
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| Email: joel.rubinstein@whitecase.com |
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR TARGET FOLLOWS]
[COMPANY SIGNATURE PAGES TO USA RARE EARTH INC.
SPA]
IN WITNESS WHEREOF, the parties hereto have caused
this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| USA Rare Earth, LLC |
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Address for Notice: |
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| By: |
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| Name: |
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| Title: |
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Email: |
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[TARGET SIGNATURE PAGE TO USA RARE EARTH INC. SPA]
IN WITNESS WHEREOF, the undersigned have caused
this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser:
Signature of Authorized Signatory of Purchaser: ______________________________
Name of Authorized Signatory:
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
EIN Number:
[SIGNATURE PAGES CONTINUE]
[PURCHASER SIGNATURE PAGES TO USA RARE EARTH INC. SPA]
IN WITNESS WHEREOF, the undersigned have caused
this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser:
Signature of Authorized Signatory of Purchaser: ______________________________
Name of Authorized Signatory:
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
Subscription Amount:
Shares of Preferred Stock:
Warrant Shares:
EIN Number:
SCHEDULE A
| Name of Purchaser |
Subscription Amount |
Shares of Series A Preferred Stock |
Warrant Shares |
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Exhibit A
Form of Certificate of Designation
USA RARE EARTH, INC.
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION 151(g) OF THE
DELAWARE GENERAL CORPORATION LAW
The undersigned, [●],
does hereby certify that:
1.
He is the [Chief Executive Officer] of USA Rare Earth, Inc., a Delaware corporation (the “Corporation”).
2.
The Corporation is authorized to issue [●] shares of preferred stock, none of which have been issued.
3.
The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):
WHEREAS, the certificate of
incorporation of the Corporation provides for a class of its authorized stock known as preferred stock, consisting of [●] shares,
$[0.0001] par value per share, issuable from time to time in one or more series;
WHEREAS, the Board of Directors
is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation
preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof,
of any of them; and
WHEREAS, it is the desire
of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating
to a series of the preferred stock, which shall consist of, except as otherwise set forth in the Purchase Agreement, up to [●] shares
of the preferred stock which the Corporation has the authority to issue, as follows:
NOW, THEREFORE, BE IT RESOLVED,
that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange of other securities,
rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of
preferred stock as follows:
TERMS OF 12.0% SERIES A CUMULATIVE CONVERTIBLE
PREFERRED STOCK
Section 1. Definitions.
For the purposes hereof, the following terms shall have the following meanings:
“Accrued
Dividend” shall have the meaning set forth in Section 3(a).
“Accrued
Value” means, as of any date, with respect to each share of Preferred Stock as of the determination date, the sum, subject to
appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to
the Preferred Stock, of (i) the Stated Value per share of Preferred Stock, plus (ii) the aggregate amount of any accrued PIK Dividends
on such share of Preferred Stock as of such date, plus (iii) on each Semi-Annual Dividend Date and on a cumulative basis, an additional
amount equal to the dollar value of all Cash Dividends that have accrued on such share pursuant to Section 3(a), but only
to the extent such Cash Dividends have not been paid, whether or not declared, but that have not, as of such date, been added to the Accrued
Value.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.
“Alternate
Consideration” shall have the meaning set forth in Section 7(f).
“Annual
Rate” means with respect to a PIK Dividend, 12.0% of the Accrued Value and with respect to a Cash Dividend, 10% of the Accrued
Value.
“Applicable
Price” shall have the meaning set forth in Section 7(b).
“Attribution
Parties” shall have the meaning set forth in Section 6(e).
“Available
Proceeds” shall have the meaning set forth in Section 5(c)(i).
“Beneficial
Ownership Limitation” shall have the meaning set forth in Section 6(e).
“Business
Combination” means the transactions contemplated by the Business Combination Agreement.
“Business
Combination Agreement” means that certain Business Combination Agreement, dated as of ______, by and among the Corporation (or
its predecessor), IPXX Merger Sub, LLC and USA Rare Earth, LLC.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “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 banks in The City of New York
generally are open for use by customers on such day.
“Buy-In”
shall have the meaning set forth in Section 6(c)(iv).
“Cash Dividend”
shall have the meaning set forth in Section 3(a).
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1 of the Purchase Agreement.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto and all conditions precedent to (i) each Holder’s obligations to pay for the Securities and (ii) the Corporation’s
obligations to deliver the Securities have been satisfied or waived.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock, par value $[0.0001] per share, of the Corporation and stock of any other class of securities
into which such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Corporation that would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Conversion
Date” shall have the meaning set forth in Section 6(a).
“Conversion
Price” shall have the meaning set forth in Section 6(b).
“Conversion
Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in accordance
with the terms hereof.
“Convertible
Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable
for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock;
“Corporation
Notice” shall have the meaning set forth in Section 8(a).
“Deemed
Liquidation Event” means: (i) a merger or consolidation in which (a) the Corporation is a constituent party or (b) a subsidiary
of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation;
provided, that, a Deemed Liquidation Event shall not include any such merger or consolidation involving the Corporation or a subsidiary
in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent,
or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at
least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) if the surviving or resulting
corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation
of such surviving or resulting corporation; or (ii) (a) the sale, in a single transaction or series of related transactions, by the Corporation
or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole,
or (b) the sale or disposition (whether by merger, consolidation or otherwise, and whether in a single transaction or a series of related
transactions) of one (1) or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries
taken as a whole are held by such subsidiary or subsidiaries, except where such sale is to a wholly owned subsidiary of the Corporation.
“Delaware
Courts” shall have the meaning set forth in Section 9(d).
“Dilutive
Issuance” shall have the meaning set forth in Section 7(b).
“Distribution”
shall have the meaning set forth in Section 7(e).
“Effective
Date” means the date that the Registration Statement filed by the Corporation pursuant to the Registration Rights Agreement
is first declared effective by the Commission.
“Equity
Conditions” means (i) the Common Stock is duly authorized, listed and eligible for trading without restriction on a Trading
Market, (ii) a resale registration statement shall be declared effective covering all Common Stock issuable to the Holders (assuming for
this purpose that conversion occurs at a Conversion Price equal to the Floor Price), (iii) the Corporation’s filings with the U.S.
Securities and Exchange Commission are current, (iv) issuance of additional shares of Common Stock to the applicable Holder will not violate
such Holder’s Beneficial Ownership Limitation and (v) the Corporation is in compliance with the Transaction Documents in all material
respects.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded
Shares” shall have the meaning set forth in Section 8(b)(ii).
“Exempt
Issuance” means the issuance of (a) any securities of the Corporation to employees, officers or directors, consultants,
contractors, vendors or other agents of the Corporation pursuant to any stock or option plan duly adopted for such purpose, by a
majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors
established for such purpose for services rendered to the Corporation, (b) securities upon the exercise or exchange of or conversion
of any Securities issued pursuant to the Purchase Agreements or the Business Combination Agreement and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the Subscription Date, provided
that such securities have not been amended since the Subscription Dates to increase the number of such securities or to
decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or
combinations) or to extend the term of such securities, (c) the Underlying Shares, (d) securities issued pursuant to any merger,
acquisition or strategic transaction or partnership approved by a majority of the directors of the Corporation, provided
that (i) such securities are issued as “restricted securities” (as defined in Rule 144) or are issued pursuant
to an effective registration statement pursuant to the Securities Act and (ii) any such issuance shall only be to a Person (or to
the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a
business synergistic with the business of the Corporation and shall provide to the Corporation additional benefits in addition to
the investment of funds, and (e) any securities issued by the Corporation pursuant to any legal settlement or similar arrangement
agreed or entered into by the Corporation, provided that, in the aggregate, not more than [●]1 shares
of Common Stock are issued or deemed issued or issuable upon conversion, settlement, exercise or exchange of any such securities
that are Options or Convertible Securities, but any such Exempt Issuance shall not include a transaction in which the
Corporation is issuing securities (i) primarily for the purpose of raising capital, including an at-the-market offering, and (ii) to
an entity whose primary business is investing in securities.
“Floor
Price” means the lesser of (i) $5.00 (as adjusted for any stock dividend, stock split, stock combination, reclassification or
similar transaction occurring after the date of the Purchase Agreement) and (ii) the Conversion Price then in effect.
“Fundamental
Transaction” shall have the meaning set forth in Section 7(f).
“Holder”
shall have the meaning set forth in Section 2.
“Inflection
Point Entities” means, collectively, Inflection Point Asset Management LLC, Kingstown Capital Management L.P., Newtyn Management,
LLC, and their respective Affiliates (including, for the avoidance of doubt, the funds any of them manage).
“Junior
Securities” shall have the meaning set forth in Section 5(a).
“New Issuance
Price” shall have the meaning set forth in Section 7(b).
“Notice
of Conversion” shall have the meaning set forth in Section 6(a).
“Options”
means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
“Option
Value” means the value of an Option based on the Black and Scholes Option Pricing model obtained from the “OV”
function on Bloomberg determined as of (A) the Trading Day prior to the public announcement of the issuance of the applicable
Option, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the
applicable Option if the issuance of such Option is not publicly announced, for pricing purpose and reflecting (i) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of the applicable Option as of the
applicable date of determination, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility
obtained from the HVT function on Bloomberg as of (A) the Trading Day immediately following the public announcement of the
applicable Option if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of
the applicable Option if the issuance of such Option is not publicly announced, (iii) the underlying price per share used in such
calculation shall be the highest weighted average price of the Common Stock during the period beginning on the Trading Day prior to
the execution of definitive documentation relating to the issuance of the applicable Option and ending on (A) the Trading Day
immediately following the public announcement of such issuance, if the issuance of such Option is publicly announced or (B) the
Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced,
(iv) a zero cost of borrow and (v) a 360 day annualization factor.
| 1 | NTD: To be 1,000,000 multiplied by the Exchange Ratio |
“Original
Issue Date” means the date of the first issuance of any shares of the Preferred Stock regardless of the number of transfers
of any particular shares of Preferred Stock and regardless of the number of certificates which may be issued to evidence such Preferred
Stock.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“PIK Dividend”
shall have the meaning set forth in Section 3(a).
“Preferred
Stock” shall have the meaning set forth in Section 2.
“Preferred
Stock Liquidation Amount” shall have the meaning set forth in Section 5(b).
“Preferred
Stock Register” shall have the meaning set forth in Section 2.
“Purchase
Agreements” means the several Securities Purchase Agreements, among the Corporation and the original Holders, as amended, modified
or supplemented from time to time in accordance with its terms.
“Purchase
Rights” shall have the meaning set forth in Section 7(d).
“Redemption
Date” shall have the meaning set forth in Section 8(b)(i).
“Redemption
Notice” shall have the meaning set forth in Section 8(b)(ii).
“Redemption
Price” shall have the meaning set forth in Section 8(b)(i).
“Redemption
Request” shall have the meaning set forth in Section 8(b)(i).
“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the Closing Date, among the Corporation and the original
Holders, in the form of Exhibit B attached to the Purchase Agreement.
“Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering
the resale of the Underlying Shares by each Holder as provided for in the Registration Rights Agreement, including the Initial Registration
Statement (as defined in the Registration Rights Agreement) and any additional Registration Statements which may be required thereunder.
“Required
Holders” shall have the meaning set forth in Section 4(c).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Securities”
means the Preferred Stock, the Warrants and the Underlying Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Semi-Annual
Dividend Date” shall mean June 1 and December 1 of each year.
“Share
Delivery Date” shall have the meaning set forth in Section 6(c).
“Standard
Settlement Period” shall have the meaning set forth in Section 6(c)(i).
“Stated
Value” shall have the meaning set forth in Section 2.
“Subscription
Date” shall mean the date of the applicable Purchase Agreement.
“Subsidiary”
means any subsidiary of the Corporation as of the Closing Date and shall, where applicable, also include any direct or indirect subsidiary
of the Corporation formed or acquired after the earliest Subscription Date.
“Successor
Entity” shall have the meaning set forth in Section 7(f).
“Trading
Day” means a day on which the principal Trading Market is open for business.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Certificate of Designation, the Purchase Agreement, the Warrants, the Registration Rights Agreement, all
exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated
pursuant to the Purchase Agreement.
“Transfer
Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Corporation, and any successor
transfer agent of the Corporation.
“Underlying
Shares” means the Conversion Shares and the Warrant Shares.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for the 20 Trading Days preceding such
date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by
Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX
is not a Trading Market, the volume weighted average price of the Common Stock for the 20 Trading Days preceding such date (or the
nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB
or OTCQX and if prices for the Common Stock are then reported in The Pink Open Market (or a similar organization or agency
succeeding to its functions of reporting prices), the average of the highest closing bid price and the lowest closing ask price of
the Common Stock for the 20 Trading Days preceding such date, or (d) in all other cases, the fair market value of a share of Common
Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Preferred
Stock then outstanding and reasonably acceptable to the Corporation, the fees and expenses of which shall be paid by the
Corporation.
“Warrant
Shares” means, collectively, the shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms
of the Warrants.
“Warrants”
means, collectively, the warrants to purchase shares of Common Stock issued pursuant to the Purchase Agreement.
Section 2. Designation, Amount and Par
Value.
| (a) | The series of preferred stock shall be designated as its “12.0%
Series A Cumulative Convertible Preferred Stock” and the number of shares so designated shall be up to [●] (which shall not
be subject to increase without the written consent of the holders of 50% of the then outstanding Preferred Stock (each, a “Holder”
and collectively, the “Holders”)). Each share of Preferred Stock shall have a par
value of $[0.0001] per share and a stated value equal to $12.00 (the “Stated Value”). |
| (b) | The Corporation shall register, or cause its Transfer Agent to register,
shares of the Preferred Stock upon records to be maintained by the Corporation or its Transfer Agent for that purpose (the “Preferred
Stock Register”), in the name of the Holders thereof from time to time. The Corporation may deem
and treat the registered Holder of shares of Preferred Stock as the absolute owner thereof for the purpose of any conversion thereof and
for all other purposes. The Corporation shall register, or cause its Transfer Agent to register, the transfer of any shares of Preferred
Stock in the Preferred Stock Register, upon surrender of the certificates evidencing such shares to be transferred, duly endorsed by the
Holder thereof, to the Corporation at its address specified herein. Upon any such registration or transfer, a new certificate evidencing
the shares of Preferred Stock so transferred shall be issued to the transferee and a new certificate evidencing the remaining portion
of the shares not so transferred, if any, shall be issued to the transferring Holder, in each case, within three Business Days. |
Section 3. Dividends.
| (a) | From and after the Closing, subject to the terms of this Section 3,
cumulative dividends shall accrue on the Accrued Value of each share of Preferred Stock at the Annual Rate. Dividends on each share of
Preferred Stock shall be cumulative and shall accrue daily from and after the Closing, but shall compound on a semi-annual basis on each
Semi-Annual Dividend Date (each, an “Accrued Dividend”) whether or not earned or
declared, and whether or not there are earnings or profits, surplus, or other funds or assets of the Corporation legally available for
the payment of dividends. Each Accrued Dividend shall be paid, at the election of the Corporation, (i) in cash (a “Cash Dividend”),
or (ii) in kind by increasing the Accrued Value of such share (a “PIK Dividend”). |
| (b) | The Corporation shall not declare, pay or set aside any dividends on
shares of any other class or series of capital stock of the Corporation ranking junior to the “12.0% Series A Cumulative Convertible
Preferred Stock (other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining
of any consents required in this Certificate of Designation or the Corporation’s certificate of incorporation) the Holders of the
Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Preferred Stock
in an amount at least equal to the sum of (i) the amount of the aggregate Accrued Dividends then accrued on such share of Preferred Stock
and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common
Stock, that dividend per share of Preferred Stock as would equal the product of (1) the dividend payable on
each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common
Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series A Preferred Stock, in each case calculated
on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series
of capital stock of the Corporation ranking junior to the 12.0% Series A Cumulative Preferred Stock that is not convertible into Common
Stock, at a rate per share of Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class
or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment
in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and
(2) multiplying such fraction by an amount equal to the Accrued Value; provided that if the Corporation declares, pays or sets aside,
on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation that is junior to the “12.0%
Series A Cumulative Convertible Preferred Stock, the dividend payable to the Holders of Preferred Stock pursuant to this Section 3
shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Preferred Stock dividend. |
| (c) | Subject to Section 5 and Section 7, the Holders
shall be entitled to receive, and the Corporation shall pay, dividends on shares of Preferred Stock (other than Accrued Dividends), on
an as-converted basis, equal to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends
are paid on shares of the Common Stock. |
Section 4. Voting Rights.
| (a) | The Holders shall be entitled to notice of any meeting of stockholders
of the Corporation and, except as otherwise required by law, shall vote together with the holders of Common Stock as a single class upon
any matter submitted to the stockholders for a vote. |
| (b) | On any matter presented to the stockholders of the Corporation for their
action or consideration at any meeting of the stockholders of the Corporation (or by written consent in lieu of a meeting), a Holder,
together with its Attribution Parties, shall be entitled to the number of votes equal to the number of whole shares of Common Stock into
which the shares of Preferred Stock held by such Holder, together with its Attribution Parties, as are convertible on the record date
for determining stockholders entitled to vote on such matter (as adjusted from time to time pursuant to Section 6 hereof and
subject to the Beneficial Ownership Limitation), but without regard as to whether sufficient shares of Common Stock are available out
of the Corporation’s authorized by unissued stock, for the purpose of effecting the conversion of the Preferred Stock. |
| (c) | As long as the Inflection Point Entities hold 20% or more of the shares
of Preferred Stock issued as of the closing of the Business Combination, the Corporation shall not, without the affirmative vote or action
by written consent of the Holders of 80% of the issued and outstanding shares of the Preferred Stock (the “Required Holders”): |
| (i) | liquidate, dissolve or wind-up the affairs of the Corporation; |
| (ii) | amend, alter or repeal the Corporation’s certificate of incorporation or bylaws, this Certificate
of Designation or any similar document of the Corporation in a manner that materially and adversely affects the powers, preferences or
rights given to the Preferred Stock; |
| (iii) | create any equity security, authorize the creation of any equity security, classify any equity security,
reclassify any equity security, or issue any other security convertible into or exercisable for any equity security, unless such security
ranks junior to the Preferred Stock with respect to its rights, preferences and privileges or increase the number of authorized shares
of Preferred Stock; |
| (iv) | except as set forth in Section 3, purchase or redeem or pay any cash dividend on any capital stock of
the Corporation ranking junior to the 12.0% Series A Cumulative Preferred Stock prior to payment of such cash dividend on the Preferred
Stock or purchase or redeem and capital stock of the Corporation ranking junior to the
12.0% Series A Cumulative Preferred Stock, other than capital stock repurchased at cost from former employees and consultants in connection
with the cessation of their service or pursuant to the terms of any equity incentive plan of the Corporation; |
| (v) | enter into any transaction with an affiliate, other than the issuance of equity or awards to eligible
participants under the Corporation’s incentive plan, equity plan or equity-based compensation plan, or with respect to employment,
consulting or award agreements with respect to executive officers of the Corporation, in each case regardless of whether such person (or
such person’s affiliates) would be considered an affiliate of the Corporation; or |
| (vi) | incur or guarantee any indebtedness other than equipment leases or trade payables incurred in the ordinary
course of business, if the aggregate indebtedness of the Corporation and its subsidiaries for borrowed money following such action would
exceed $5,000,000; provided, however, that the Preferred Stock shall not be considered indebtedness for purposes
of this calculation. |
| (d) | Notwithstanding anything to the contrary herein, Section 6(d)
may not be amended, modified or waived. |
Section 5. Ranking; Liquidation.
| (a) | The Preferred Stock shall rank senior to all of the Common Stock and
any class or series of capital stock of the Corporation currently existing, (collectively, “Junior Securities”), in each case,
as to dividends or distributions of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntarily or involuntarily. |
| (b) | Preferential Payments to Holders of Preferred Stock; Distribution
of Remaining Assets. |
| (i) | In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation,
the Holders of shares of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available
for distribution to its stockholders, and in the event of a Deemed Liquidation Event, the Holders of shares of Preferred Stock then outstanding
shall be entitled to be paid out of the consideration payable to stockholders in such Deemed Liquidation Event or out of the Available
Proceeds (as defined below), as applicable, before any payment shall be made to the holders of Common Stock or other Junior Securities
by reason of their ownership thereof, an amount per share equal to the greater of (i) 100% of the Accrued Value or (ii) such amount
per share as would have been payable had all shares of Preferred Stock been converted into Common Stock pursuant to Section 6
immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event based on the then effective rate of conversion
and without giving effect to the Beneficial Ownership Limitation or any other limitations on conversion set forth herein. If upon any
such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay the Holders of shares of Preferred Stock the full amount to which they shall
be entitled under this Section 5(b), the Holders of shares of Preferred Stock shall share ratably in any distribution of the
assets available for distribution in proportion to the respective amounts that would otherwise be payable in respect of the shares held
by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. |
| (ii) | In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation,
after the payment in full of all amounts required to be paid to the holders of shares of Preferred Stock pursuant to Section 5(b)(i),
the remaining assets of the Corporation available for distribution to its stockholders or, in the case of a Deemed Liquidation Event,
the consideration not payable to the holders of shares of Preferred Stock pursuant to Section 5(b)(i) or the remaining Available
Proceeds, as the case may be, shall be distributed among the holders of the shares of Preferred Stock and Common Stock, pro rata based
on the number of shares held by each such holder, treating for this purpose all such securities as if they had been converted to Common
Stock pursuant to the terms of this Certificate
of Designation immediately prior to such liquidation, dissolution or winding up of the Corporation. The aggregate amount which a holder
of a share of Preferred Stock is entitled to receive under Sections 5(b)(i)
and 5(b)(ii) is hereinafter referred to as the “Preferred Stock Liquidation Amount.” |
| (c) | Deemed Liquidation Events. |
| (i) | In the event of a Deemed Liquidation Event, if the Corporation does not effect a dissolution of the Corporation
under the Delaware General Corporation Law within ninety (90) days after such Deemed Liquidation Event, then (i) the Corporation shall
send a written notice to each Holder of Preferred Stock no later than the ninetieth (90th) day after the Deemed Liquidation
Event advising such Holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following
clause to require the redemption of such shares of Preferred Stock, and (ii) if the Required Holders so request in a written instrument
delivered to the Corporation not later than one hundred twenty (120) days after such Deemed Liquidation Event, the Corporation shall use
the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets
sold or technology licensed, or any other expenses associated with the Deemed Liquidation Event or the dissolution of the Corporation,
in each case as determined in good faith by the Board of Directors of the Corporation), together with any other assets of the Corporation
available for distribution to its stockholders, all to the extent permitted by Delaware law governing distributions to stockholders (the
“Available Proceeds”), on the one hundred fiftieth (150th) day after such Deemed Liquidation Event, to redeem
all outstanding shares of Preferred Stock at a price per share equal to the Preferred Stock Liquidation Amount. Notwithstanding the foregoing,
in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding
shares of Preferred Stock, the Corporation shall redeem a pro rata portion of each Holder’s shares of Preferred Stock to the fullest
extent of such Available Proceeds, based on the respective amounts that would otherwise be payable in respect of the shares to be redeemed
if the Available Proceeds were sufficient to redeem all such shares, and shall redeem the remaining shares as soon as it may lawfully
do so under Delaware law governing distributions to stockholders. The provisions of Section 8 shall apply, with such necessary
changes in the details thereof as are necessitated by the context, to the redemption of the Preferred Stock pursuant to this Section
5(c)(i). Prior to the distribution or redemption provided for in this Section 5(c)(i), the Corporation shall not expend or
dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in connection with such
Deemed Liquidation Event. |
| (ii) | In any Deemed Liquidation Event, if Available Proceeds are in a form of property other than in cash, the
value of such distribution shall be deemed to be the fair market value of such property. The determination of fair market value of such
property shall be made in good faith by the Board of Directors of the Corporation, provided that to the extent such property consists
of securities, the fair market value of such securities shall be determined as follows: |
For securities not subject
to investment letters or other similar restrictions on free marketability covered by Section 5(c)(iii) below, the value shall be
the VWAP of such securities.
| (iii) | The method of valuation of securities subject to investment letters or other similar restrictions on free
marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall
take into account an appropriate discount (as determined in good faith by the Board of Directors of the Corporation) from the market value
as determined pursuant to Section 5(c)(ii) above so as to reflect the approximate fair market value thereof. |
| (iv) | If any portion of the consideration payable to the stockholders of the Corporation is payable only
upon satisfaction of contingencies (the “Additional Consideration”), (a) the portion of such consideration that is not
Additional Consideration (such portion, the “Initial Consideration”) shall be allocated in accordance with the foregoing
Sections 5(b) or 5(c) as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation
Event; and (b) any Additional Consideration which becomes
payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital
stock of the Corporation in accordance with Sections 5(b) and 5(c) after taking into account the previous payment of the Initial Consideration
as part of the same transaction. For the purposes of this Section 5(c)(iv), consideration placed into escrow or retained as a holdback
to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed
to be Additional Consideration. |
Section 6. Conversion.
| (a) | Conversions at Option of Holder. Each share of Preferred Stock
shall be convertible, at any time and from time to time from and after the Original Issue Date at the option of the Holder thereof, into
that number of whole shares of Common Stock (subject to the limitations set forth in Section 6(d)) determined by dividing
the Accrued Value of such share of Preferred Stock by the Conversion Price. Holders shall effect conversions by providing the Corporation
with the form of conversion notice attached hereto as Annex A (a “Notice of Conversion”),
unless the Corporation does not serve as its transfer agent, in which event the Notice of Conversion shall be delivered to the Corporation’s
transfer agent. Each Notice of Conversion shall specify the number of shares of Preferred Stock to be converted, the number of shares
of Preferred Stock owned prior to the conversion at issue, the number of shares of Preferred Stock owned subsequent to the conversion
at issue and the date on which such conversion is to be effected, which date may not be prior to the date the applicable Holder delivers
by e-mail attachment or by a nationally recognized overnight courier service such Notice of Conversion to the Corporation (such date,
the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion,
the Conversion Date shall be the date that such Notice of Conversion to the Corporation is deemed delivered hereunder. No ink-original
Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of
Conversion form be required. The calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest
or mathematical error. To effect conversions of shares of Preferred Stock, a Holder shall not be required to surrender the certificate(s)
representing the shares of Preferred Stock to the Corporation unless all of the shares of Preferred Stock represented thereby are so converted,
in which case such Holder shall deliver the certificate representing such shares of Preferred Stock promptly following the Conversion
Date at issue. Shares of Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled
and shall not be reissued, and all rights (other than the right to receive the Conversion Shares) with respect to such shares will terminate.
The Corporation’s stock ledger and transfer book shall serve as the exclusive record of outstanding shares of Preferred Stock. |
| (b) | Conversion Price. The initial conversion price is $12.00, subject
to adjustment herein (the “Conversion Price”). |
| (c) | Mechanics of Conversion |
| (i) | Delivery of Conversion Shares Upon Conversion. Not later than the number of Trading Days comprising
the Standard Settlement Period (as defined below) after each Conversion Date (the “Share Delivery Date”), the Corporation
shall deliver, or cause to be delivered, to the converting Holder (A) the number of Conversion Shares being acquired upon the conversion
of the Preferred Stock, which on or after the earlier of (i) the one year anniversary of the Original Issue Date or (ii) the Effective
Date, shall be free of restrictive legends and trading restrictions (other than those which may then be required by the Purchase Agreement
or any other applicable lock-up agreement or similar agreement) and (B) cash in an amount equal to any accrued and unpaid dividends, if
any. On or after the earlier of (i) the one year anniversary of the Original Issue Date or (ii) the Effective Date, the Corporation shall
deliver the Conversion Shares required to be delivered by the Corporation under this Section 6 electronically through the
Depository Trust Company or another established clearing corporation performing similar functions. As used herein, “Standard
Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Corporation’s primary
Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Conversion.
Notwithstanding the foregoing, with respect to any Notice(s) of Conversion delivered at or prior to 12:00 p.m. (New York City time) on
the Original Issue Date, the Corporation agrees to deliver the Conversion Shares subject to such notice(s) by 4:00 p.m. (New York City
time) on the Original Issue Date. |
| (ii) | Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion
Shares are not delivered to or as reasonably directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled
to elect by written notice to the Corporation at any time on or before its receipt of such Conversion Shares, to rescind such conversion,
in which event the Corporation shall promptly return to the Holder any original Preferred Stock certificate delivered to the Corporation
and the Holder shall promptly return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Notice of
Conversion. |
| (iii) | Obligation Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and
deliver the Conversion Shares upon conversion of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective
of any action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of
any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination,
or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation
of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation of the
Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however, that
such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such Holder. In
the event a Holder shall elect to convert any or all of the Accrued Value of its Preferred Stock, the Corporation may not refuse conversion
based on any claim that such Holder or anyone associated or affiliated with such Holder has been engaged in any violation of law, agreement
or for any other reason, unless an injunction from a court, on notice to Holder, restraining and/or enjoining conversion of all or part
of the Preferred Stock of such Holder shall have been sought and obtained, and the Corporation posts a surety bond for the benefit of
such Holder in the amount of 150% of the Accrued Value of Preferred Stock which is subject to the injunction, which bond shall remain
in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to such
Holder to the extent it obtains judgment. In the absence of such injunction, the Corporation shall issue Conversion Shares and, if applicable,
cash, upon a properly noticed conversion. If the Corporation fails to deliver to a Holder such Conversion Shares pursuant to Section
6(c)(i) by 10th Trading Day after the Share Delivery Date applicable to such conversion, the Corporation shall pay to such
Holder, in cash, as liquidated damages and not as a penalty, for each $5,000 of Accrued Value of Preferred Stock being converted, $25
per Trading Day (increasing to $50 per Trading Day on the third Trading Day and increasing to $100 per Trading Day on the sixth Trading
Day after such damages begin to accrue) for each Trading Day after the 10th Trading Day after the Share Delivery Date until
such Conversion Shares are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual
damages for the Corporation’s failure to deliver Conversion Shares within the period specified herein and such Holder shall have
the right to pursue all remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance
and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder from seeking to enforce damages pursuant to any
other Section hereof or under applicable law. |
| (iv) | Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition
to any other rights available to the Holder, if the Corporation fails for any reason unrelated to the actions of the Holder or its Affiliates
to deliver to a Holder the applicable Conversion Shares by the Share Delivery Date pursuant to Section 6(c)(i), and if after
such Share Delivery Date such Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the
Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by such Holder of the Conversion
Shares which such Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”),
then the Corporation shall (A) pay in cash to such Holder (in
addition to any other remedies available to or elected by such Holder) the amount, if any, by which (x) such Holder’s total purchase
price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares
of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which
the sell order giving rise to such purchase obligation was executed (excluding any brokerage commissions) and (B) at the option of such
Holder, either reissue (if surrendered) the shares of Preferred Stock equal to the number of shares of Preferred Stock submitted for conversion
(in which case, such conversion shall be deemed rescinded) or deliver to such Holder the number of shares of Common Stock that would have
been issued if the Corporation had timely complied with its delivery requirements under Section 6(c)(i).
For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an
attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any
applicable brokerage commissions) giving rise to such purchase obligation was a total of $10,000, under clause (A) of the immediately
preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice
indicating the amounts payable to such Holder in respect of the Buy-In and, upon the request of the Corporation, evidence of the amount
of such loss. If a Holder purchases shares of Common Stock having a total purchase price of $9,000 to cover a Buy-In with respect to an
attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any
applicable brokerage commissions) giving rise to such purchase obligation was a total of $10,000, under clause (A) of the preceding sentence,
the Corporation shall not be required to pay Holder any amount. For the avoidance of doubt, in the event of a Buy-In, the Holder shall
use commercially reasonable efforts to purchase shares at the lowest available price, paying the lowest reasonably available brokerage
commission. The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In
and evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to
the Corporation’s failure to timely deliver Conversion Shares upon conversion of the shares of Preferred Stock as required pursuant
to the terms hereof. |
| (v) | Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times
reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion
of the Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other
than the Holder (and the other Holders of the Preferred Stock), not less than such aggregate number of shares of the Common Stock as shall
(subject to the terms and conditions set forth in the Purchase Agreement) be issuable (taking into account the adjustments and restrictions
of Section 7) upon the conversion of the then outstanding shares of Preferred Stock (assuming for such purpose a Conversion
Price equal to the Floor Price and any such conversions are made without regard to any limitations on conversion set forth herein). The
Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued,
fully paid and nonassessable and, if a Registration Statement is then effective under the Securities Act, shall be registered for public
resale in accordance with such Registration Statement (subject to such Holder’s compliance with its obligations under the Registration
Rights Agreement). |
| (vi) | Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued
upon the conversion of the Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon
such conversion, the Corporation shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal
to such fraction multiplied by the Conversion Price or round up to the next whole share. Notwithstanding anything to the contrary contained
herein, but consistent with the provisions of this subsection with respect to fractional Conversion Shares, nothing shall prevent any
Holder from converting fractional shares of Preferred Stock. |
| (vii) | Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Preferred
Stock shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue
or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable
in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that
of the Holders of such shares of Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares
unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall
have established to the satisfaction of the Corporation that such tax has been paid. |
| (d) | Beneficial Ownership Limitation. A Holder may notify the Corporation
in writing in the event it elects to be subject to the provisions contained in this Section 6(d); however, no Holder shall be subject
to this Section 6(d) unless he, she or it makes such election. If the election is made, (i) the Corporation shall not effect any
conversion of the Preferred Stock, and such Holder shall not have the right to convert all or any portion of the Preferred Stock, to the
extent that, after giving effect to the conversion set forth on the applicable Notice of Conversion, such Holder (together with such Holder’s
Affiliates, and any Persons acting as a group together with such Holder or any of such Holder’s Affiliates (such Persons, “Attribution
Parties”)) would beneficially own in excess of 4.9%, 9.9%, 19.9% of the Corporation’s Common
Stock (or such other amount as a Holder may specify) (the “Beneficial Ownership Limitation”)
and (ii) the Corporation shall not permit the Holder to vote, and such Holder shall not have the right vote pursuant to Section 4(b)
of this Certificate of Designation, all or any portion of the Preferred Stock that such Holder is not permitted to convert pursuant to
the preceding clause (i) (provided, however, that such Holder shall retain the right to vote pursuant to Section 4(c) of this Certificate
of Designation to the extent that retaining such right does not cause such Holder to be deemed to beneficially own Conversion Shares within
the meaning of Rule 13d-3 promulgated under the Exchange Act. For purposes of the foregoing sentence, the number of shares of Common Stock
beneficially owned by such Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable
upon conversion of the Preferred Stock with respect to which such determination is being made, but shall exclude the number of shares
of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Accrued Value of Preferred Stock beneficially owned
by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion
of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein
(including, without limitation, the Preferred Stock or the Warrants) beneficially owned by such Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 6(d), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation
contained in this Section 6(d) applies, the determination of whether the Preferred Stock is convertible (in relation to other
securities owned by such Holder together with any Affiliates and Attribution Parties) and of how many shares of Preferred Stock are convertible
shall be in the sole discretion of such Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s
determination of whether the shares of Preferred Stock may be converted (in relation to other securities owned by such Holder together
with any Affiliates and Attribution Parties) and how many shares of the Preferred Stock are convertible, in each case subject to the Beneficial
Ownership Limitation. To ensure compliance with this restriction, each Holder will be deemed to represent to the Corporation each time
it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the
Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group
status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. The Holder shall provide the Corporation with any information reasonably requested by the Corporation in connection with this
Beneficial Ownership Limitation and the provisions related thereto, in each case with respect to the Corporation's reporting obligations
pursuant to the Securities Act, the Exchange Act, or other federal or state securities regulations. For purposes of this Section 6(d),
in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock
as stated in the most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the Commission,
as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more recent written notice by the Corporation
or the Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written or oral request (which may be via email) of a Holder, the Corporation shall within two Trading Days confirm orally and
in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common
Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Preferred
Stock, by such Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common
Stock was reported. By written notice to the Corporation, a Holder may from time to time increase or decrease the Beneficial Ownership
Limitation applicable to such Holder, provided, however, that any such increase in the Beneficial Ownership Limitation will not be effective
until the sixty-first (61st) day after such notice is delivered to the Corporation. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(d)
to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation
contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations
contained in this paragraph shall apply to a successor Holder of Preferred Stock. |
Section 7. Certain Adjustments.
| (a) | Stock Dividends and Stock Splits. If the Corporation, at any
time while this Preferred Stock is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in
shares of Common Stock on shares of Common Stock or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include
any shares of Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, this Preferred Stock or any cash
distributions), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of
a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification
of shares of the Common Stock, any shares of capital stock of the Corporation, then each of the Conversion Price and the Floor Price shall
be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the
Corporation) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the
record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or re-classification. |
| (b) | VWAP Reset. If on the twenty-first trading day following the
date that is six months after the Closing Date, the VWAP (the “Measurement Price”)
is less than the Conversion Price then in effect, then the Conversion Price then in effect shall be reduced to an amount equal to the
greater of (i) the Measurement Price and (ii) $7.50. |
| (c) | Adjustment of Conversion Price upon Issuance of Common Stock.
If and whenever on or after the Closing Date until the first date on which no shares of Preferred Stock are outstanding the Corporation
issues or sells, or in accordance with this Section 7(c) is deemed to have issued or sold, any shares of Common Stock
(including the issuance or sale of shares of Common Stock owned or held by or for the account of the Corporation, but excluding
shares of Common Stock deemed to have been issued or sold by the Corporation in connection with any Exempt Issuance) for a consideration
per share (the “New Issuance Price”) less than the lesser of (i) $10.00 and (ii)
the Conversion Price then in effect (such price thresholds described in clauses (i) and (ii), collectively, the “Applicable
Price”, and each such issue, sale or deemed issuance or sale, a “Dilutive Issuance”),
in issuances and sales conducted for the purpose of raising capital by the Corporation where the aggregate amount of consideration received
by the Corporation, together with all prior issuances and sales conducted for the purpose of raising capital by the Corporation on or
after the Closing Date that were excluded from this Section 7(c) by this clause, exceeds $500,000, then, immediately after such
Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price. |
For all purposes of the foregoing
(including, without limitation, determining the adjusted Conversion Price and the New Issuance Price under this Section 7(c)),
the following shall be applicable:
| (i) | Options and Convertible Securities. The consideration per share received by the Corporation for
Common Stock deemed to have been issued pursuant to Section 7(d)(ii), relating to Options and Convertible Securities, shall be
determined by dividing: |
| a. | the total amount, if any, received or receivable by the Corporation as consideration for the issue of
such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the
Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options
for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible
Securities, by |
| b. | the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent adjustment of such number) deemed to be issued pursuant to Section 7(c)(ii)
upon the issuance of such Options or Convertible Securities. |
| (ii) | Deemed Issuance of Options and Convertible Securities. |
| a. | If the Corporation at any time or from time to time shall issue any Options or Convertible Securities
or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible
Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction
of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor,
the conversion or exchange of such Convertible Securities, shall be deemed to be outstanding and to have been issued as of the time of
such issue or, in case such a record date shall have been fixed, as of the close of business on such record date. |
| b. | If the purchase or exercise price provided for in any Options, the additional consideration, if any, payable
upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible
into or exercisable or exchangeable for Common Stock increases or decreases at any time (other than (i) proportional changes in conversion
or exercise prices, as applicable, in connection with an event referred to in Section 7(a) above and (ii) automatic adjustments
to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security which are not more favorable to the
holder thereof than the anti-dilution and similar provisions set forth herein), the Conversion Price in effect at the time of such increase
or decrease shall be adjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities
provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate (as the case
may be) at the time initially granted, issued or sold. For purposes of this Section 7(c), if the terms of any Option or Convertible
Security that was outstanding as of the date of first issuance of a share of Preferred Stock are increased or decreased in the manner
described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable
upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment
pursuant to this Section 7(c)(ii) shall be made if such adjustment would result in an increase of the Conversion Price then in
effect. |
| (iii) | Calculation of Consideration Received. In case any Option is issued in connection with the issue
or sale of other securities of the Corporation, together comprising one integrated transaction, (x) the Options will be deemed to have
been issued for the Option Value of such Options and (y) the other securities issued or sold in such integrated transaction shall be deemed
to have been issued or sold for the difference of (I) the aggregate consideration received by the Corporation less any consideration paid
or payable by the Corporation pursuant to the terms of such other securities of the Corporation, less (II) the Option Value. If any shares
of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration
other than cash received therefor will be deemed to be the net amount received by the Corporation therefor. If any shares of Common Stock,
Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by
the Corporation will be the fair value of such consideration, except where such consideration consists of publicly traded securities,
in which case the amount of consideration received by the Corporation will be the VWAP of such publicly traded securities on the date
of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection
with any merger in which the Corporation is the surviving entity, the amount of consideration therefor will be deemed to be the fair value
of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options
or Convertible Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities will
be determined jointly by the Corporation and the Required Holders. If such parties are unable to reach agreement within ten (10) days
after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration
will be determined within five (5) Business Days after the tenth (10th) day following the Valuation Event by an independent, reputable
appraiser jointly selected by the Corporation and the Required Holders. The determination of such appraiser shall be final and binding
upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Corporation. |
| (iv) | Record Date. If the Corporation takes a record of the holders of shares of Common Stock for the
purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible
Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be
deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of
such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case
may be). |
| (v) | Expiration or Termination of Options or Convertible Securities. Upon the expiration or termination
of any unexercised Option or unconverted or unexchanged Convertible Securities (or portion thereof) which resulted (either upon its original
issuance or upon a revision of its terms) in an adjustment to the Conversion Price pursuant to the terms of Section 7(c), the Conversion
Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Securities (or portion thereof)
never been issued. |
| (d) | Subsequent Rights Offerings. In addition to any adjustments pursuant
to Section 7(a) or Section 7(b) above, if at any time the Corporation grants, issues or sells any Common Stock
Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares
of Common Stock (the “Purchase Rights”), then the Holders will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had
held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Preferred Stock (without regard to
any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on
which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which
the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the
Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such
extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent)
and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not
result in the Holder exceeding the Beneficial Ownership Limitation). To the extent
that the issue price of such Purchase Rights would result in an adjustment of the Conversion Price pursuant to Section 7(c), such adjustment
shall not occur to the extent the Holders were granted the right to acquire such Purchase Rights on the applicable terms. |
| (e) | Pro Rata Distributions. During such time as this Preferred Stock
is outstanding, if the Corporation declares or makes any dividend or other distribution of its assets (or rights to acquire its assets)
to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash,
stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement
or other similar transaction) (a “Distribution”), in each such case, the Holders
shall be entitled to participate in such Distribution to the same extent that the Holders would have participated therein if the Holder
had held the number of shares of Common Stock acquirable upon complete conversion of this Preferred Stock (without regard to any limitations
on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record
is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the participation in such Distribution (provided, however, to the extent that the Holder’s
right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock
as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the
Holder until such time, if ever such grant, issuance or sale, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation). |
| (f) | Fundamental Transaction. If, at any time while this Preferred
Stock is outstanding, (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation
of the Corporation with or into another Person, (ii) the Corporation (and all of its Subsidiaries, taken as a whole), directly or indirectly,
effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one
or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation
or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other
securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the
voting power of the common equity of the Corporation, (iv) the Corporation, directly or indirectly, in one or more related transactions
effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which
the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a stock
split, combination or reclassification of shares of Common Stock covered by Section 7(a)), or (v) the Corporation, directly
or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person
acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the common equity of the Corporation
(each a “Fundamental Transaction”), then, upon any subsequent conversion of this
Preferred Stock, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion
immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 6(d) on the
conversion of this Preferred Stock), the number of shares of capital stock of the successor or acquiring corporation or of the Corporation,
if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Preferred Stock
is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(d) on the
conversion of this Preferred Stock). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately
adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a
reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock
are given any choice as to the securities, cash or property to be received in a Fundamental
Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this
Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor
to the Corporation or surviving entity in such Fundamental Transaction shall file a new Certificate of Designation with the same terms
and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’
right to convert such preferred stock into Alternate Consideration. The Corporation shall cause any successor entity in a Fundamental
Transaction in which the Corporation is not the survivor (the “Successor Entity”)
to assume in writing all of the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents
(as defined in the Purchase Agreement) in accordance with the provisions of this Section 7(e) pursuant to written agreements
in form and substance reasonably satisfactory to the Required Holders and approved by the Required Holders (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder of this Preferred Stock, deliver to the Holder in exchange
for this Preferred Stock a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance
to this Preferred Stock which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent
entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Preferred Stock (without regard to
any limitations on the conversion of this Preferred Stock) prior to such Fundamental Transaction, and with a conversion price which applies
the Conversion Price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock
pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such
conversion price being for the purpose of protecting the economic value of this Preferred Stock immediately prior to the consummation
of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Required Holders. Upon the occurrence
of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of
such Fundamental Transaction, the provisions of this Certificate of Designation and the other Transaction Documents referring to the “Corporation”
shall refer instead to the Successor Entity), and may exercise every right and power of the Corporation and shall assume all of the obligations
of the Corporation under this Certificate of Designation and the other Transaction Documents with the same effect as if such Successor
Entity had been named as the Corporation herein. |
| (g) | Calculations. All calculations under this Section 7
shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the
number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common
Stock (excluding any treasury shares of the Corporation) issued and outstanding. |
| (h) | Notice to the Holders. |
| (i) | Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision
of this Section 7, the Corporation shall promptly deliver to each Holder by facsimile or email a notice setting forth the
Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. |
| (ii) | Notice to Allow Conversion by Holder. If (A) the Corporation shall declare a dividend (or any other
distribution in whatever form) on the Common Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption
of the Common Stock, (C) the Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe
for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall
be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party,
any sale or transfer of all or substantially all of the assets of the Corporation (and all of its Subsidiaries, taken as a whole), or
any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Corporation shall
authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the
Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of this Preferred Stock, and shall
cause to be delivered by email to each Holder at its email address as it shall appear upon the stock books
of the Corporation, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants,
or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect
therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the
extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Corporation or any
of the Subsidiaries, the Corporation shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K,
unless determined by the Company that such filing would be harmful to the Company at such time, in which case the Company shall file such
8-K as soon as is reasonably practicable in its discretion. For the avoidance of doubt, and without limiting the conversion rights of
any Holder, each Holder shall remain entitled to convert the Accrued Value of this Preferred Stock (or any part hereof) during the twenty
(20)-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein. |
Section 8. Redemption.
| (a) | Redemption by the Corporation. Subject to the provisions of this
Section 8 and unless prohibited by applicable law governing distributions to stockholders, the Corporation may, in its sole
discretion, redeem all or a portion of the outstanding shares of Preferred Stock: |
| (i) | on or after the Closing but prior to the first anniversary of the Closing, at a redemption price per share
equal to 150% of the Accrued Value; |
| (ii) | on or after the first anniversary of the Closing but prior to the second anniversary of the Closing, at
a redemption price per share equal to 140% of the Accrued Value; |
| (iii) | on or after the second anniversary of the Closing but prior to the third anniversary of the Closing, at
a redemption price per share equal to 130% of the Accrued Value; |
| (iv) | on or after the third anniversary of the Closing but prior to the fourth anniversary of the Closing, at
a redemption price per share equal to 120% of the Accrued Value; |
| (v) | on or after the fourth anniversary of the Closing but prior to the fifth anniversary of the Closing, at
a redemption price per share equal to 110% of the Accrued Value; and |
| (vi) | on or after the fifth anniversary of the Closing, at a redemption price per share equal to 100% of the
Accrued Value. |
If,
on the date of such redemption, applicable law governing distributions to stockholders prevents the Corporation from redeeming all
shares of Preferred Stock scheduled to be redeemed, the Corporation shall be entitled to ratably redeem the maximum number of shares
that it may redeem consistent with such law and any Preferred Stock not so redeemed shall remain outstanding. The Corporation shall
provide written notice (the “Corporation Notice”) by e-mail and first class
mail postage prepaid, to each Holder of record (determined at the close of business on the Business Day next preceding the day on
which the Corporation Notice is given) of the Preferred Stock to be redeemed, at the address last shown on the records of the
Corporation for such Holder, notifying such Holder of the redemption to be effected, specifying the number of shares to be redeemed
from such Holder, specifying the date of such redemption, the redemption price, the place at which payment may be obtained and
calling upon such Holder to surrender to the Corporation, in the manner and at the place designated, his, her or its
certificate or certificates representing the shares to be redeemed; provided that the date of redemption shall be not less
than 15 days from the date of the Corporation Notice. Except as otherwise provided herein, on or after the applicable date of
redemption, each Holder to be redeemed shall surrender to the Corporation the certificate or certificates representing such shares,
in the manner and at the place designated in the Corporation Notice, and thereupon the price of redemption of such shares shall be
payable to the order of the person whose name appears on such certificate or certificates as the owner thereof and each surrendered
certificate shall be cancelled. In the event less than all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares. Notwithstanding
anything herein to the contrary, each Holder shall remain entitled to convert the Accrued Value of its Preferred Stock (or any part
thereof) during the 15-day period commencing on the date of the Corporation Notice through the applicable date of
redemption.
| (b) | Redemption
by the Holders. |
| (i) | Unless prohibited by applicable law governing distribution to stockholders, shares of Preferred Stock
shall be redeemed by the Corporation at a purchase price equal to the Accrued Value (the “Redemption Price”), if at
any time and from time to time after the fifth (5th) anniversary of the Closing, the Required Holders deliver to the Corporation
a written notice demanding redemption of all shares of Preferred Stock (the “Redemption Request”). The 20th day after
the date of the Corporation Notice shall be referred to as the “Redemption Date.” Upon receipt of a Redemption Request,
the Corporation shall apply all of its assets to any such redemption, and to no other corporate purpose, until the Redemption Price has
been paid in full, except to the extent prohibited by Delaware law governing distributions to stockholders. |
| (ii) | Following receipt of a Redemption Request, the Corporation shall send written notice of the mandatory
redemption (the “Redemption Notice”) to each Holder of record of Preferred Stock not less than 15 days prior to the
Redemption Date. The Redemption Notice shall state: |
| a. | the number of shares of Preferred Stock held by the Holder that the Corporation shall redeem on the Redemption
Date; |
| b. | the Redemption Date and the Redemption Price; |
| c. | the date upon which the Holder’s right to convert such shares terminates; and |
| d. | for Holders of shares in certificated form, that the Holder is to surrender to the Corporation, in the
manner and at the place designated, his, her or its certificate or certificates representing the shares of Preferred Stock to be redeemed. |
If the Corporation
receives, on or prior to the 10th day after the date of delivery of the Redemption Notice to a Holder of Preferred Stock, written notice
from a Holder of greater than 10% of the outstanding shares of Preferred Stock that such Holder elects to be excluded from the redemption
provided in this Section 8(b), then the shares of Preferred Stock registered on the books of the Corporation in the name of such
Holder at the time of the Corporation’s receipt of such notice shall thereafter be “Excluded Shares.” Excluded
Shares shall not be redeemed or redeemable pursuant to this Section 8(b), whether on such Redemption Date or thereafter.
| (iii) | On the Redemption Date, the Corporation shall redeem the Preferred Stock owned by each Holder; provided,
however, that Excluded Shares shall not be redeemed. If on the Redemption Date Delaware law governing distributions to stockholders
prevents the Corporation from redeeming all shares of Preferred Stock to be redeemed, the Corporation shall ratably redeem the maximum
number of shares that it may redeem consistent with such law, and shall redeem the remaining shares as soon as it may lawfully do so under
such law. In the event that any portion of the Redemption Price has not been paid within five (5) Business Days following the Redemption
Date, interest on such unpaid portion of the Redemption
Price shall accrue thereon until such amount is paid in full at a rate equal to the lesser of (i) 24.0% per annum and (ii) the maximum
rate permitted under applicable law. Such interest shall be paid by the Corporation, in its sole discretion, (i) in cash or (ii) subject
to the satisfaction of the Equity Conditions at the time of payment, shares of Common Stock. |
| (c) | Rights Subsequent to Redemption. Upon the redemption of shares
of Preferred Stock pursuant to Section 8(a) or Section 8(b), all rights with respect to such shares of Preferred
Stock shall immediately terminate, except with respect to the right of the Holders to receive the applicable redemption price with respect
to such shares of Preferred Stock in accordance with Section 8(a) or Section 8(b), as applicable. |
Section 9. Miscellaneous.
| (a) | Notices. Any and all notices or other communications or deliveries
to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally,
by e-mail, or sent by nationally recognized overnight courier service, addressed to the Corporation, at the address set forth above the
address or email address most recently provided to Holders by the Corporation for purposes of notice hereunder Attention: General Counsel,
100, W. Airport Road, Stillwater, OK 74075, e-mail address legal@usare.com, or such other e-mail address or address as the Corporation
may specify for such purposes by notice to the Holders delivered in accordance with this Section 9. Any and all notices or
other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by e-mail,
or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder
appearing on the books of the Corporation, or if no such facsimile number, e-mail address or address appears on the books of the Corporation,
at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered
via facsimile at the facsimile number or e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time)
on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the
e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading
Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv)
upon actual receipt by the party to whom such notice is required to be given. |
| (b) | Absolute Obligation. Except as expressly provided herein, no
provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional,
to pay liquidated damages and accrued dividends, as applicable, on the shares of Preferred Stock at the time, place, and rate, and in
the coin or currency, herein prescribed. |
| (c) | Lost or Mutilated Preferred Stock Certificate. If a Holder’s
Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall issue or cause to be issued, in exchange
and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed
certificate, a new certificate for the shares of Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence
of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation (which
shall not include the posting of any bond). The applicant for a new certificate under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement certificate. |
| (d) | Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the
internal laws of the State of Delaware, without regard to the principles of conflict of laws thereof. All legal proceedings concerning
the interpretation, enforcement and defense of the transactions contemplated by this Certificate of Designation (whether brought against
a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and
federal courts sitting in the City of Wilmington, Delaware, County
of New Castle (the “Delaware Courts”). The Corporation and
each Holder hereby irrevocably submits to the exclusive jurisdiction of the Delaware Courts for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of
any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of such Delaware Courts, or such Delaware Courts are improper or inconvenient venue
for such proceeding. The Corporation and each Holder hereby irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence
of delivery) to such party at the address in effect for notices to it under this Certificate of Designation and agrees that such service
shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by applicable law. The Corporation and each Holder hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating
to this Certificate of Designation or the transactions contemplated hereby. If the Corporation or any Holder shall commence an action
or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation
and prosecution of such action or proceeding. |
| (e) | Waiver. Any waiver by the Corporation or a Holder of a breach
of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders. The failure of the Corporation
or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered
a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other
term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing. |
| (f) | Severability. If any provision of this Certificate of Designation
is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable
to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that
any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest
due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law. |
| (g) | Next Business Day. Whenever any payment or other obligation hereunder
shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day. |
| (h) | Headings. The headings contained herein are for convenience only,
do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof. |
| (i) | Status of Converted or Redeemed Preferred Stock. Shares of Preferred
Stock may only be issued pursuant to the Purchase Agreement. If any shares of Preferred Stock shall be converted, redeemed or reacquired
by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated
as 12.0% Series A Cumulative Convertible Preferred Stock. |
| (j) | Tax Withholding. The Corporation agrees
that, provided that each Holder delivers to the Corporation a properly executed IRS Form W-9 or other certification satisfactory to the
Corporation certifying as to such Holder’s status (or the status of such Holder’s beneficial owner(s)) as a United States
person (within the meaning of Section 7701(a)(30) of the Code) and such Holder’s (or such beneficial owners’) eligibility
for complete exemption from backup withholding (“U.S. Person Certification”),
under current law the Corporation (including any paying agent of the Corporation) shall not be required to, and shall not, withhold on
any payments or deemed payments to any such Holder. In the event that any Holder fails to deliver to the Corporation such properly
executed U.S. Person Certification, the Corporation reasonably believes that a previously delivered U.S. Person Certification is no longer
accurate and/or valid, or there is a change in law that affects the withholding obligations of the Corporation, the Corporation and its
paying agent shall be entitled to withhold taxes on all
payments made to the relevant Holder in the form of cash or otherwise treated, in the Corporation's reasonable discretion, as a dividend
for U.S. federal tax purposes or to request that the relevant Holder promptly pay the Corporation in cash any amounts required to satisfy
any withholding tax obligations, in each case, to the extent the Corporation or its paying agent determines in good faith it is required
to deduct and withhold tax on payments to the relevant Holder under applicable law; provided,
that the Corporation shall use commercially reasonable efforts to notify the relevant Holder of any required withholding tax reasonably
in advance of the date of the relevant payment. In the event that the Corporation does not
have sufficient cash with respect to any Holder from withholding on cash payments otherwise payable to such Holder and cash paid to the
Corporation by such Holder to the Corporation pursuant to the immediately preceding sentence, the Corporation and its paying agent shall
be entitled to withhold taxes on deemed payments, including distributions of additional Preferred Stock in lieu of cash and constructive
distributions on the Preferred Stock to the extent required by law, and the Corporation and its paying agent shall be entitled to satisfy
any required withholding tax on non-cash payments (including deemed payments) through a sale of a portion of the Preferred Stock received
as a dividend or from cash dividends or sales proceeds subsequently paid or credited on the Preferred Stock. |
| (k) | Tax Treatment. Absent a change in law, Internal Revenue Service
practice or a contrary determination (as defined in Section 1313(a) of the Internal Revenue Code, as amended (the “Code”)),
each holder of Preferred Stock and the Corporation shall not treat the Preferred Stock (based on their terms as set forth in this Certificate
of Designation) as “preferred stock” within the meaning of Section 305 of the Code and Treasury Regulation Section 1.305-5
for United States federal income tax and withholding tax purposes and shall not take any position inconsistent with such treatment. |
*********************
IN WITNESS WHEREOF, this Certificate of Designation is
executed on behalf of the Corporation by its Chief Executive Officer this [●] day of [●].
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[USA
RARE EARTH, INC.] |
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By: |
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Name: |
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Title: |
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ANNEX A
NOTICE OF CONVERSION
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF 12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK)
The undersigned hereby elects to convert the number
of shares of 12.0% Series A Cumulative Convertible Preferred Stock, par value $[0.0001] per share (the “Preferred Stock”),
indicated below into shares of common stock, par value $[0.0001] per share (the “Common Stock”), of [USA Rare Earth,
Inc.], a Delaware corporation (the “Corporation”), according to the conditions hereof, as of the date written below.
If shares of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto and is delivering herewith such certificates and opinions as may be required by the Corporation in accordance
with the Purchase Agreement. No fee will be charged to the Holders for any conversion, except for any such transfer taxes.
Conversion calculations:
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Date to Effect Conversion: |
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Number of shares of Preferred Stock owned prior to Conversion: |
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Number of shares of Preferred Stock to be Converted: |
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Accrued Value of shares of Preferred Stock to be Converted: |
|
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Number of shares of Common Stock to be Issued: |
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Applicable Conversion Price: |
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Number of shares of Preferred Stock subsequent to Conversion: |
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Address for Delivery: |
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or |
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DWAC Instructions: |
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Broker no: |
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Account no: |
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[HOLDER] |
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By: |
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Name: |
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Title: |
Exhibit B
Form of Registration Rights Agreement
FORM OF
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this “Agreement”), dated as of [●], 2024, is made and entered into by and among USA Rare Earth,
Inc. a Delaware corporation (formerly known as Inflection Point Acquisition Corp. II, a Cayman Islands exempted company limited by shares,
prior to the Domestication (as defined herein)) (the “Company”), Cantor Fitzgerald & Co., a New York general
partnership (“Cantor”), Inflection Point Holdings II LLC, a Delaware limited liability company (the “Sponsor”),
the members of the Sponsor identified on the signature page hereto under “Other Sponsor Holder” (such members, together with
the Sponsor, the “Sponsor Holders”) and each of the undersigned parties listed on the signature page hereto
under “USARE Holders” (the “USARE Holders” and each such party, together with the Sponsor, the Sponsor
Holders, Cantor and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 of this Agreement,
a “Holder” and collectively the “Holders”).
RECITALS
WHEREAS, the Company, Cantor, and the Sponsor
are party to that certain Registration Rights Agreement, dated as of May 24, 2023 (the “Original RRA”);
WHEREAS, the Company is party to that certain
Business Combination Agreement, dated as of August 20, 2024 (as the same may be amended, restated, amended and restated, supplemented
or otherwise modified from time to time, the “Business Combination Agreement” and the transactions contemplated
thereby, the “Business Combination”), by and between the Company, USA Rare Earth, LLC, a Delaware limited liability
company (“Legacy Rare Earth”) and IPXX Merger Sub, LLC, a Delaware limited liability company;
WHEREAS, prior to the date hereof and subject
to the conditions of the Business Combination Agreement, IPXX migrated to and domesticated as a Delaware corporation in accordance with
Section 388 of the Delaware General Corporation Law, as amended, and the Cayman Islands Companies Law (As Revised) (the “Domestication”),
and as part of the Domestication, (i) each Class A ordinary share, par value $0.0001 per share, of the Company converted into one share
of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) and (ii) each warrant to purchase
one Class A ordinary share of the Company converted into one warrant to purchase one share of Common Stock (the “Warrants”);
WHEREAS, pursuant to the Business Combination
Agreement, on the date hereof, the holders Legacy Rare Earth’s Class A Convertible Preferred Units received shares of 12% Series
A Cumulative Convertible Preferred Common Stock, par value $0.0001 per share, of the Company (the “Series A Preferred Stock”)
in exchange for such units;
WHEREAS, pursuant to the Business Combination
Agreement, on the date hereof, the holders of Legacy Rare Earth’s Class A Preferred Investor Warrants received warrants to purchase
Common Stock (the “Series A Investor Warrants”) in exchange for such Class A Preferred Investor Warrants;
WHEREAS, pursuant to the transactions contemplated
by the Business Combination Agreement and subject to the terms and conditions set forth therein, the USARE Holders and the other pre-Business
Combination security holders of Legacy Rare Earth received an aggregate of [●] shares of Common Stock;
WHEREAS, on the date hereof, the Company
issued an additional [●] shares of Series A Preferred Stock and additional Series A Investor Warrants to purchase an aggregate of
[●] shares of Common Stock (subject to adjustment) to certain investors pursuant to that certain Securities Purchase Agreement,
dated as of [●] 2024, by and among the Company and such investors or other securities purchase agreements regarding the Series A
Preferred Stock and Series A Investor Warrants;
WHEREAS, pursuant to Section 5.5 of
the Original RRA, the provisions, covenants and conditions set forth therein may be amended or modified upon the written consent of
the Company and the Holders (as defined in the Original RRA) (the “Original Holders”) of at least a
majority in interest of the Registrable Securities (as defined in the Original RRA) (the “Original Registrable
Securities”) at the time in question, and the Sponsor Holders party hereto are Original Holders of at least a majority
in interest of the Original Registrable Securities as of the date hereof; and
WHEREAS, in connection with the consummation
of the transactions described above, the Company and the Original Holders desire to amend and restate the Original RRA in its entirety
as set forth herein, and the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the
Holders certain registration rights with respect to the Registrable Securities (as defined below) on the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the
representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1
Definitions. The terms defined in this ARTICLE 1 shall, for all purposes of this Agreement, have the respective meanings
set forth below:
“Additional Holder”
shall have the meaning given in Section 5.11.
“Additional Holder
Common Stock” shall have the meaning given in Section 5.11.
“Adverse Disclosure”
shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive
Officer or Chief Financial Officer of the Company or the Board, in each case, after consultation with counsel to the Company, (i) would
be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not
to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under
which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being
filed, declared effective or used, as the case may be, and (iii) the Company has a bona fide business purpose for not making such information
public.
“Agreement”
shall have the meaning given in the Preamble hereto.
“Board”
shall mean the board of directors of the Company.
“Business Combination
Agreement” shall have the meaning given in the Recitals hereto.
“Business Day”
means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law
to close.
“Cantor”
shall have the meaning given in the Preamble hereto.
“Closing”
shall have the meaning given in the Business Combination Agreement.
“Closing Date”
shall have the meaning given in the Business Combination Agreement.
“Commission”
shall mean the U.S. Securities and Exchange Commission.
“Common Stock”
shall have the meaning given in the Recitals hereto.
“Company”
shall have the meaning given in the Preamble hereto and includes the Company’s successors by recapitalization, merger, consolidation,
spin-off, reorganization or similar transaction.
“Competing Registration
Rights” shall have the meaning given in Section 5.8.
“Demanding Holder”
shall have the meaning given in Section 2.1.4.
“Earnout Shares”
shall have the meaning given in the Business Combination Agreement.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Floor Price”
shall mean $1.00.
“Form S-1 Shelf”
shall have the meaning given in Section 2.1.1.
“Form S-3 Shelf”
shall have the meaning given in Section 2.1.1.
“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.
“Holder Information”
shall have the meaning given in Section 4.1.2.
“Holders”
shall have the meaning given in the Preamble.
“Joinder”
shall have the meaning given in Section 5.10.
“Law”
shall mean 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.
“Legacy Rare Earth”
shall have the meaning given in the Recitals hereto.
“Legal Proceeding”
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.
“Lock-Up Agreements”
means the Company’s bylaws as may be in effect from time to time and the Sponsor Holder Lock-Up Agreement, collectively.
“Lock-Up Period”
shall mean (a) with respect to the Sponsor Holder and their respective Permitted Transferees, the lock-up period specified with respect
to a party in the Sponsor Holder Lock-Up Agreement and (b) with respect to the USARE Holders and their respective Permitted Transferees,
the lock-up period specified with respect to a Person in the Company’s bylaws as may be in effect from time to time.
“Maximum Number
of Securities” shall have the meaning given in Section 2.1.5.
“Minimum Takedown
Threshold” shall have the meaning given in Section 2.1.4.
“Misstatement”
shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement
or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light
of the circumstances under which they were made) not misleading.
“Original Registrable
Securities” shall have the meaning given in the Recitals hereto.
“Original RRA”
shall have the meaning given in the Recitals hereto.
“Other Coordinated
Offering” shall have the meaning given in Section 2.4.1.
“Permitted Transferees”
means persons to whom a holder of Registrable Securities is permitted to transfer such Registrable Securities prior to the expiration
of the applicable Lock-Up Period pursuant to the applicable Lock-Up Agreement.
“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.
“Piggyback Registration”
shall have the meaning given in Section 2.2.1.
“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable
Security” shall mean: (i) any outstanding shares of Common Stock held by a Holder following the Closing that are
issued in connection with the transactions contemplated by the Business Combination Agreement, including, for the avoidance of
doubt, any shares of Common Stock issued in connection with the Domestication (other than the Earnout Shares); (ii) any shares of
Common Stock that may be acquired by Holders upon the exercise, conversion or redemption of any other security of the Company or
other right to acquire Common Stock held by a Holder following the Closing that are issued in connection with the transactions
contemplated by the Business Combination Agreement, including, for the avoidance of doubt, the shares of Common Stock issuable upon
exercise of Warrants, the Earnout Shares (provided that, prior to the release of such Earnout Shares to the Eligible Stockholders
(as defined in the Business Combination Agreement) in accordance with the terms of the Business Combination Agreement, the Earnout
Shares shall only be deemed to be “Registrable Securities” for purposes of Sections 2.1.1, 2.1.2
and 2.1.3) and only where the person receiving such Earnout Shares has executed and become a party to this Agreement, the
shares of Common Stock issuable upon conversion of any outstanding shares of Series A Preferred Stock and the shares of Common Stock
issuable upon exercise of Series A Investor Warrants; [(iii) any outstanding Warrants held by a Holder any outstanding shares of
Common Stock]; (iv) any outstanding shares of Common Stock or warrants to purchase shares of Common Stock (including any shares of
Common Stock issued or issuable upon the exercise of any such warrant) of the Company held by a Holder following the date hereof to
the extent that such securities are “restricted securities” (as defined in Rule 144) or are otherwise held by an
“affiliate” (as defined in Rule 144) of the Company; and (v) any other equity security of the Company issued or issuable
with respect to any securities referenced in clause (i), (ii), (iii) or (iv) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or similar transaction;
provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon
the earliest to occur of the following events: (i) a Registration Statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement by the applicable Holder to a Person that is not an “affiliate” (as defined
in Rule 144) of the Company and new certificates for such securities not bearing (or book-entry positions not subject to) a legend
restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall
not require registration under the Securities Act; (ii) such securities shall have been otherwise transferred (or moved to a
brokerage account), new certificates for such securities not bearing (or book-entry positions not subject to) a legend restricting
further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require
registration under the Securities Act; (iii) such securities shall have ceased to be outstanding; (iv) such securities may be sold
without registration pursuant to Rule 144 (but with no volume or other restrictions or limitations including as to manner or timing
of sale or current public information requirements); (v) such securities have been sold to, or through, a broker, dealer or
underwriter in a public distribution or other public securities transaction; (vi) after such time as the Holder of such securities
holds less than 10% of the Registrable Securities issued to such Holder in connection with Closing, unless the Company consents
otherwise and (vii) the expiration of five years after the closing of the Business Combination, which such five-year period may be
extended the Company in its sole discretion.
“Registration”
shall mean a registration, including related Shelf Takedowns, effected by preparing and filing a Registration Statement, Prospectus or
similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder,
and such registration statement becoming effective.
“Registration
Expenses” shall mean the documented, out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all registration and filing fees
(including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc. and any national securities
exchange on which the Common Stock are then listed);
(B) fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue
sky qualifications of Registrable Securities);
(C) printing, messenger, telephone and
delivery expenses;
(D) reasonable fees and disbursements
of counsel for the Company;
(E) reasonable fees and disbursements
of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and
(F) reasonable fees and expenses of
one (1) legal counsel selected by the majority-in-interest of the Demanding Holders in an Underwritten Offering or Other Coordinated Offering.
“Registration
Statement” shall mean any registration statement that covers Registrable Securities pursuant to the provisions of this Agreement,
including any Shelf, and in each case, including the Prospectus included in such registration statement, amendments (including post-effective
amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration
statement.
“Requesting Holders”
shall have the meaning given in Section 2.1.5.
“Rule 144”
shall mean Rule 144 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may
be promulgated by the Commission.
“Securities Act”
shall mean the Securities Act of 1933, as amended from time to time.
“Series A Investor
Warrants” shall have the meaning given in the Recitals hereto.
“Series A Preferred
Stock” shall have the meaning given in the Recitals hereto.
“Shelf”
shall mean the Form S-1 Shelf, the Form S-3 Shelf, or any Subsequent Shelf Registration, as the case may be.
“Shelf Registration”
shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant
to Rule 415 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated
by the Commission.
“Shelf Takedown”
shall mean an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.
“Sponsor”
shall have the meaning given in the Preamble hereto.
“Sponsor Holders”
shall have the meaning given in the Preamble hereto.
“Sponsor Holder
Lock-Up Agreement” means the lock-up agreement, dated August 20, 2024, entered into by the Company and the Sponsor.
“Sponsor Majority
Holders” shall mean the Sponsor Holders holding in the aggregate a majority of the Registrable Securities then held by the
Sponsor Holders on an as-converted to Common Stock basis.
“Subsequent Shelf
Registration” shall have the meaning given in Section 2.1.2.
“Total Limit”
shall have the meaning given in Section 2.1.6.
“Transactions”
shall have the meaning given in the Recitals hereto.
“Transfer”
shall mean the (i) sale or assignment of, offer to sell, contract or agreement to sell, hypothecation, pledge, grant of any option to
purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent
position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act
with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash
or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).
“Underwriter”
shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such
dealer’s market-making activities.
“Underwritten
Lock-Up Period” shall have the meaning given in Section 2.3.
“Underwritten
Registration” or “Underwritten Offering” shall mean a Registration in which securities of the
Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
“Underwritten
Shelf Takedown” shall have the meaning given in subsection 2.1.4.
“USARE Holders”
shall have the meaning given in the Preamble hereto.
“Withdrawal Notice”
shall have the meaning given in Section 2.1.6.
“Yearly Limit”
shall have the meaning given in Section 2.1.4.
ARTICLE 2
REGISTRATIONS
2.1.1 Filing.
The Company shall, subject to Section 3.4, submit or file as promptly as practicable following the Closing Date a
Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or, if the Company is
eligible to use a Registration Statement on Form S-3, a Shelf Registration on Form S-3 (the “Form S-3
Shelf”), in each case, covering the resale of all Registrable Securities (determined as of two (2) Business Days prior
to such submission or filing and assuming that (i) all shares of Series A Preferred Stock are converted into shares of Common Stock
at a conversion price equal to the Floor Price and (ii) all Series A Investor Warrants are exercised in full at an exercise price
equal to the Floor Price) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf
declared effective as soon as reasonably practicable after the filing thereof, but no later than the earlier of (a) the 90th
calendar day following the filing date thereof if the Commission notifies the Company that it will “review” the
Registration Statement and (b) the tenth (10th) business day after the date the Company is notified (orally or in writing, whichever
is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further
review. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination
of methods legally available to, and requested by, any Holder named therein. Subject to Sections 2.1.3 and 3.4, the
Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the Commission such amendments,
including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective, available for use
to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of
the Securities Act until such time as there are no longer any Registrable Securities. In the event the Company files a Form S-1
Shelf, the Company shall use its commercially reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf
Registration) to a Form S-3 Shelf as soon as reasonably practicable after the Company is eligible to use Form S-3.
2.1.2
Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while
Registrable Securities are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts
to, as promptly as is reasonably practicable, cause such Shelf to again become effective under the Securities Act (including using its
commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use
its commercially reasonable efforts to, as promptly as is reasonably practicable, amend such Shelf in a manner reasonably expected to
result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf
Registration (a “Subsequent Shelf Registration”) registering the resale of all Registrable Securities under
such Shelf (determined as of two (2) business days prior to such filing and assuming that (i) all shares of Series A Preferred Stock are
converted into shares of Common Stock at a conversion price equal to the Floor Price and (ii) all Series A Investor Warrants are exercised
in full at an exercise price equal to the Floor Price), and pursuant to any method or combination of methods legally available to, and
requested by, any Holder named therein. If a Subsequent Shelf Registration is filed, the Company shall use its commercially reasonable
efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable
after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be an automatic shelf registration statement (as
defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated
under the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration
continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and
in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent
Shelf Registration shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf
Registration shall be on another appropriate form.
2.1.3 New
Registrable Securities. Subject to Section 3.4, in the event that any Holder holds Registrable Securities that are not
registered for resale on a delayed or continuous basis, the Company shall, upon the written request of such Holder, promptly use its
commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at the Company’s
option, any then-available Shelf (including by means of a post-effective amendment) or a Subsequent Shelf Registration and cause the
same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration shall be subject
to the terms hereof; provided, however, that the Company shall only be required to cause such Registrable Securities to be so
covered twice per calendar year for each of (i) the Sponsor Holders, collectively and (ii) the USARE Holders, collectively.
2.1.4
Requests for Underwritten Shelf Takedowns. Subject to Section 3.4, at any time and from time to time when an effective
Shelf is on file with the Commission, any Holder (a “Demanding Holder”) may request to sell all or any portion
of its Registrable Securities in an Underwritten Offering or other coordinated offering that is registered pursuant to the Shelf (each,
an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten
Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder, either individually
or together with other Demanding Holders, with a total offering price reasonably expected to exceed, in the aggregate, $25 million (the
“Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written
notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf
Takedown. Subject to Section 2.4.4, the Company shall have the right to select the Underwriters for such offering (which shall
consist of one or more reputable nationally recognized investment banks), subject to the initial Demanding Holder’s prior approval
(which approval shall not be unreasonably withheld, conditioned or delayed). Subject to Section 2.4.6, each of (i) the Sponsor
Holders, collectively and (ii) the USARE Holders, collectively, may demand Underwritten Shelf Takedowns pursuant to this Section 2.1.4
(x) not more than two (2) times in any 12-month period (the “Yearly Limit”). Notwithstanding anything to the
contrary in this Agreement, the Company may effect any Underwritten Offering pursuant to any then-effective Registration Statement, including
a Form S-3, that is then available for such offering.
2.1.5
Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good
faith, advises the Company, the Demanding Holders and the Holders requesting piggy back rights pursuant to this Agreement with respect
to such Underwritten Shelf Takedown (the “Requesting Holders”) (if any) in writing that the dollar amount or
number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all
other shares of Common Stock or other equity securities that the Company desires to sell all other shares of Common Stock or other equity
securities, if any, that have been requested to be sold in such Underwritten Offering pursuant to separate written contractual piggy-back
registration rights held by any other stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities
that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method,
or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum
Number of Securities”), then the Company shall include in such Underwritten Offering, before including any shares of Common
Stock or other equity securities proposed to be sold by the Company or by other holders of Common Stock or other equity securities, the
Registrable Securities of the Demanding Holders and the Requesting Holders (if any) (pro rata, as nearly as possible, based on
the respective number of Registrable Securities that each Demanding Holder and Requesting Holder (if any) has requested be included in
such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that the Demanding Holders and Requesting Holders
have requested be included in such Underwritten Shelf Takedown that can be sold without exceeding the Maximum Number of Securities). To
facilitate the allocation of Registrable Securities in accordance with the above provisions, the Company or the Underwriters may round
the number of shares allocated to any Holder to the nearest 10 Registrable Securities.
2.1.6 Underwritten
Shelf Takedown Withdrawal. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement
used for marketing such Underwritten Shelf Takedown, a majority in interest of the Demanding Holders initiating an Underwritten
Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written
notification (a “Withdrawal Notice”) to the Company and the Underwriter or Underwriters (if any) of their
intention to withdraw from such Underwritten Shelf Takedown; provided that any other Demanding Holder(s) may elect to have the
Company continue an Underwritten Shelf Takedown if the Minimum Takedown Threshold would still be satisfied by the Registrable
Securities proposed to be sold in the Underwritten Shelf Takedown by the Demanding Holder(s). If withdrawn, a demand for an
Underwritten Shelf Takedown shall constitute a demand for an Underwritten Shelf Takedown by the withdrawing Demanding Holder for
purposes of Section 2.1.4 and shall count toward the Yearly Limit and the Total Limit, unless either (i) the Demanding
Holder(s) making the withdrawal has not previously withdrawn any Underwritten Shelf Takedown or (ii) the Demanding Holder(s) making
the withdrawal reimburses the Company for all Registration Expenses with respect to such Underwritten Shelf Takedown (or, if there
is more than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective number of Registrable
Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown); provided that, if any
other Demanding Holder(s) elects to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding
sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten Shelf Takedown demanded by such Demanding
Holder(s) for purposes of Section 2.1.4 and shall count
toward the Yearly Limit and the Total Limit. Following the receipt of any Withdrawal Notice, the Company shall promptly forward such
Withdrawal Notice to any other Requesting Holders. Notwithstanding anything to the contrary in this Agreement, the Company shall be
responsible for the Registration Expenses incurred in connection with a Shelf Takedown prior to its withdrawal under this Section
2.1.6, other than if a Demanding Holder elects to pay such Registration Expenses pursuant to clause (ii) of the second
sentence of this Section 2.1.6.
| 2.2 | Piggyback Registration. |
| 2.2.1 | Piggyback Rights. If the Company or any Holder proposes to conduct a registered offering of, or
if the Company proposes to file a Registration Statement under the Securities Act with respect to the Registration of, equity securities,
or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, or Company equity securities
for its own account or for the account of stockholders of the Company (or by the Company and by the securityholders of the Company including,
without limitation, an Underwritten Shelf Takedown pursuant to Section 2.2.1), other than a Registration Statement (or any registered
offering with respect thereto) (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer
or offering of securities solely to the Company’s existing securityholders, (iii) pursuant to a Registration Statement on Form S-4
(or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (iv) for an
offering of debt that is convertible into equity securities of the Company, (v) for a dividend reinvestment plan, or (vi) a Block Trade
or an Other Coordinated Offering (which shall be subject to Section 2.4), then the Company shall give written notice of such proposed
offering to all of the Holders of Registrable Securities as soon as practicable but not less than seven days before the anticipated filing
date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red
herring” prospectus or prospectus supplement used for marketing such offering, which notice shall (A) describe the amount and type
of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter
or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to include in
such registered offering such number of Registrable Securities as such Holders may request in writing within two (2) business days after
transmission of such written notice (such Registration, a “Piggyback Registration”). Subject to Section 2.2.2,
the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and, if applicable,
shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit
the Registrable Securities requested by the Holders pursuant to this Section 2.2.1 to be included therein on the same terms and
conditions as any similar securities of the Company included in such registered offering and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable
Securities in a Piggyback Registration shall be subject to such Holder’s agreement to enter into an underwriting agreement in customary
form with the Underwriter(s) selected for such Underwritten Offering by the Company. |
| 2.2.2 | Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten
Offering that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating
in the Piggyback Registration in writing that the dollar amount or number of shares of Common Stock or other equity securities that the
Company or the Demanding Holders desire to sell, taken together with (i) the shares of Common Stock or other equity securities, if any,
as to which Registration or a registered offering has been demanded pursuant to separate written contractual arrangements with Persons
other than the Holders of Registrable Securities hereunder (ii) the Registrable Securities as to which Registration has been requested
pursuant to this Section 2.2, and (iii) the shares of Common Stock or other equity securities, if any, as to which Registration
or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights of Persons other than
the Holders of Registrable Securities hereunder, exceeds the Maximum Number of Securities, then: |
| (a) | If the Registration or registered offering is undertaken for the Company’s account, the Company
shall include in any such Registration or registered offering (A) first, the shares of Common Stock or other equity securities that the
Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum
Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their
rights to register their Registrable Securities pursuant to subsection 2.2.1 hereof (pro rata, as nearly as practicable,
based on the respective number of Registrable Securities that such Holder has requested be included in such Underwritten Offering and
the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering), which can
be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not
been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities, if any, as
to which Registration or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights
of Persons other than the Holders of Registrable Securities hereunder, which can be sold without exceeding the Maximum Number of Securities; |
| (b) | If the Registration or registered offering is pursuant to a request by Persons other than the Holders
of Registrable Securities, then the Company shall include in any such Registration or registered offering (A) first, the shares of Common
Stock or other equity securities, if any, of such requesting Persons, other than the Holders of Registrable Securities, which can be sold
without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached
under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities
pursuant to Section 2.2.1, pro rata, as nearly as practicable, based on the respective number of Registrable Securities that each
Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have
requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; (C) third,
to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares
of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of
Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A),
(B) and (C), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering
has been requested pursuant to separate written contractual piggy-back registration rights of such Persons other than the Holder of Registrable
Securities hereunder, which can be sold without exceeding the Maximum Number of Securities; and |
| (c) | If the Registration or registered offering is pursuant to a request by Holder(s) of Registrable Securities
pursuant to Section 2.1, then the Company shall include in any such Registration or registered offering securities in the priority
set forth in Section 2.1.5. |
| 2.2.3 | Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding
Holder, whose right to withdraw from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.1.6)
shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company
and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness
of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration
pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect
to such Piggyback Registration used for marketing such transaction. The Company (whether on its own good faith determination or as the
result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement
filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement.
Notwithstanding anything to the contrary in this Agreement (other than Section 2.1.6), the Company shall be responsible for the
Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.2.3. |
| 2.2.4 | Unlimited Piggyback Registration Rights. For purposes of clarity, subject to Section 2.1.6,
any Piggyback Registration effected pursuant to Section 2.2 hereof shall not be counted as an Underwritten Shelf Takedown under
Section 2.1.4 and shall not count toward the Yearly Limit or the Total Limit. |
| 2.3 | Market Stand-off. In connection with any Underwritten Offering of equity securities of the Company
(other than a Block Trade or Other Coordinated Offering), if requested by the managing Underwriter, each Holder that is an executive officer
or director of the Company or a Holder in excess of 5.0% of the then-outstanding Common Stock or securities convertible thereinto (and
for which it is customary for such a Holder to agree to a lock-up) agrees that it shall not Transfer any shares of Common Stock or other
equity securities of the Company (other than those included in such offering pursuant to this Agreement), without the prior written consent
of the Company, during the 90-day period (or such shorter time agreed to by the managing Underwriters) beginning on the date of pricing
of such offering (the “Underwritten Lock-Up Period”), except (i) to Permitted Transferees, (ii) as expressly
permitted in writing by the Company or (iii) in the event the Underwriters managing the offering otherwise consent in writing. Each such
Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in each case on substantially the
same terms and conditions as all other Holders). The Company will not be obligated to undertake an Underwritten Shelf Takedown during
any Underwritten Lock-Up Period binding on the Holders, nor will the Company be obligated to include in any Piggyback Registration any
Registrable Securities that are then subject to a “lock-up” agreement. |
| 2.4 | Block Trades; Other Coordinated Offerings. |
| 2.4.1 | Notwithstanding any other provision of this ARTICLE 2 but subject to Section 3.4, at any
time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in (a) an underwritten
registered offering not involving a “roadshow,” an offer commonly known as a “block trade” (a “Block
Trade”) or (b) an “at the market” or similar registered offering through a broker, sales agent or distribution
agent, whether as agent or principal, (an “Other Coordinated Offering”), in each case, with an anticipated aggregate
offering price of, either (x) at least $25 million or (y) all remaining Registrable Securities held by the Demanding Holder, then such
Demanding Holder only needs to notify the Company of the Block Trade or Other Coordinated Offering at least five (5) Business Days prior
to the day such offering is to commence and the Company shall as expeditiously as possible use its commercially reasonable efforts to
facilitate such Block Trade or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable
Securities wishing to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with the
Company and any Underwriters, brokers, sales agents or placement agents prior to making such request in order to facilitate preparation
of the registration statement, prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering. |
| 2.4.2 | Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used
in connection with a Block Trade or Other Coordinated Offering, a majority-in-interest of the Demanding Holders initiating such Block
Trade or Other Coordinated Offering shall have the right to submit a Withdrawal Notice to the Company, the Underwriter or Underwriters
(if any) and any brokers, sale agents or placement agents (if any) of their intention to withdraw from such Block Trade or Other Coordinated
Offering. Notwithstanding anything to the contrary in this Agreement, the Demanding Holder shall be responsible for the Registration Expenses
incurred in connection with a Block Trade or Other Coordinated Offering prior to its withdrawal under this Section 2.4.2. |
| 2.4.3 | Notwithstanding anything to the contrary in this Agreement, Section 2.2 shall not apply to a Block
Trade or Other Coordinated Offering initiated by a Demanding Holder pursuant to this Agreement. |
| 2.4.4 | The Demanding Holder in a Block Trade or Other Coordinated Offering shall have the right to select the
Underwriters and any brokers, sale agents or placement agents (if any) for such Block Trade or Other Coordinated Offering (in each case,
which shall consist of one or more reputable nationally recognized investment banks). |
| 2.4.5 | Subject to Section 2.4.6, each of (i) the Sponsor Holders, as a group, and (ii) the USARE Holders,
as a group, may demand no more than two (2) Block Trades or Other Coordinated Offerings pursuant to this Section 2.4 in any twelve
(12) month period. For the avoidance of doubt, any Block Trade or Other Coordinated Offering effected pursuant to this Section 2.4
shall not be counted as a demand for an Underwritten Shelf Takedown pursuant to Section 2.1.4. |
| 2.4.6 | Notwithstanding anything to the contrary in this Agreement, with respect to (i) the Sponsor Holders, as
a group, or (ii) the USARE Holders, as a group, in no event may the number of Block Trades or Other Coordinated Offerings demanded pursuant
to this Section 2.4 plus the number of Underwritten Shelf Takedowns demanded pursuant to Section 2.1.4 exceed a total of
three (3) demands for such group in any twelve (12) month period. |
| 2.5 | Legends. In connection with any sale or other disposition of the Registrable Securities by a Holder
pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) and upon compliance
by the Holder with the requirements of this Section 2.5, if requested by the Holder, the Company shall use its commercially reasonable
efforts to cause the transfer agent for the Registrable Securities (the “Transfer Agent”) to remove any restrictive
legends related to the book entry account holding such Registrable Securities (if the requirements of Rule 144 have been met) and make
a new, unlegended entry for such book entry shares sold or disposed of without restrictive legends promptly after any such request therefor
from the Holder; provided that the Company and the Transfer Agent have timely received from the Holder customary representations and other
documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith. Subject to receipt from the Holder
by the Company and the Transfer Agent of customary representations and other documentation reasonably acceptable to the Company and the
Transfer Agent in connection therewith, the Holder may request that the Company remove any legend from the book entry position evidencing
its Registrable Securities and the Company will, if required by the Transfer Agent, use its commercially reasonable efforts cause an opinion
of the Company’s counsel be provided, in a form reasonably acceptable to the Transfer Agent, to the effect that the removal of such
restrictive legends in such circumstances may be effected under the Securities Act, following the earliest of such time as such Registrable
Securities (i) are subject to or have been or are about to be sold pursuant to an effective registration statement or (ii) have been or
are about to be sold pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission).
If restrictive legends are no longer required for such Registrable Securities pursuant to the foregoing, the Company shall, in accordance
with the provisions of this section promptly after any request therefor from the Holder accompanied by such customary and reasonably acceptable
representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the
Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry for such book entry shares. The Company
shall be responsible for the fees of its Transfer Agent, its legal counsel and all DTC fees associated with such issuance. |
| 2.6 | FINRA Compliance. Notwithstanding anything herein to the contrary, Cantor may not (i) exercise
demand registration rights after five (5) years from the commencement of sales in the Company’s initial public offering, (ii) exercise
demand rights on more than one occasion or (iii) exercise its “piggyback” registration rights after seven (7) years from the
effective date of the Company’s initial public offering. |
ARTICLE 3
COMPANY PROCEDURES
| 3.1 | General Procedures. In connection with any Shelf and/or Shelf Takedown, the Company shall use its
commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended
plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request
in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities
to a Holder’s members, securityholders or partners), and pursuant thereto the Company shall, as expeditiously as possible: |
| 3.1.1 | prepare and file with the Commission, as soon as reasonably practicable, a Registration Statement with
respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective
and remain effective until all Registrable Securities have ceased to be Registrable Securities; |
| 3.1.2 | prepare and file with the Commission such amendments and post-effective amendments to the Registration
Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%)
of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required
by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and
regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement
are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus; |
| 3.1.3 | prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish
without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’
legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement
(in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration
Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities
included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable
Securities owned by such Holders; |
| 3.1.4 | prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i)
register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws
of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light
of their intended plan of distribution) may request (or provide evidence reasonably satisfactory to such Holders that the Registrable
Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities
covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by
virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable
the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities
in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation
in any such jurisdiction where it is not then otherwise so subject; |
| 3.1.5 | use commercially reasonable efforts to cause all such Registrable Securities to be listed on each national
securities exchange or automated quotation system on which similar securities issued by the Company are then listed; |
| 3.1.6 | provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities
no later than the effective date of such Registration Statement; |
| 3.1.7 | advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation
or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued; |
| 3.1.8 | prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such
Registration Statement or Prospectus as may be (a) necessary in order to comply with the Securities Act, the Exchange Act and the rules
and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of
days that sales are suspended pursuant to Section 3.4, furnish a copy thereof to each seller of such Registrable Securities and
by means of one counsel on behalf of all such sellers (excluding any exhibits thereto and any filing made under the Exchange Act that
is to be incorporated by reference therein); |
| 3.1.9 | notify the selling Holders at any time when a Prospectus relating to such Registration Statement is required
to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration
Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof; |
| 3.1.10 | in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker,
placement agent or sales agent that is registered pursuant to a Registration Statement, permit a representative of the Holders (such representative
to be selected by a majority of the participating Holders), the Underwriters or other financial institutions facilitating such Underwritten
Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or
accountant retained by such Holders collectively, Underwriters or other financial institutions to participate, at each
such Person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and
employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant
or accountant in connection with the Registration; provided, however, that such representative, Underwriters or financial institutions
agree to confidentiality arrangements, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure
of any such information; |
| 3.1.11 | use commercially reasonable efforts to obtain a “comfort” letter (including a bring-down letter
dated as of the date the Registrable Securities are delivered for sale pursuant to such Registration) from the Company’s independent
registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or a sale by a broker,
placement agent or sales agent pursuant to a Registration Statement (subject to such Underwriter or other financial institution facilitating
such offering providing such certification or representation as reasonably requested by the Company’s independent registered public
accountings and the Company’s counsel), to the extent customary, in customary form and covering such matters of the type customarily
covered by “comfort” letters as the managing Underwriter or other similar type of sales agent or placement agent may reasonably
request; |
| 3.1.12 | use commercially reasonable efforts to obtain, in the event of an Underwritten Offering, a Block Trade,
an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to a Registration Statement, to the extent
customary, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative
assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating
Holders, the broker, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect
to the Registration in respect of which such opinion is being given as the participating Holders, broker, placement agent, sales agent,
or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, provided, in each
case, that such participating Holders provide such information to such counsel as is customarily required for, or is reasonably requested
by such counsel for purposes of, such opinion or negative assurance letter; |
| 3.1.13 | in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker,
placement agent or sales agent pursuant to a Registration Statement, enter into and perform its obligations under an underwriting agreement,
purchase agreement, sales agreement or placement agreement in usual and customary form, with the managing Underwriter or broker, sales
agent or placement agent of such offering or sale; |
| 3.1.14 | make available to its security holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective
date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any
successor rule promulgated thereafter by the Commission); |
| 3.1.15 | with respect to an Underwritten Offering pursuant to Section 2.1.4, use its commercially reasonable
efforts to make available senior executives of the Company to participate in customary “road show” presentations that may
be reasonably requested (in light of the circumstances of the Company at the time) by the Underwriter in such Underwritten Offering; and |
| 3.1.16 | otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably
be requested by the Holders participating in such Registration, consistent with the terms of this Agreement, in connection with such Registration. |
Notwithstanding the foregoing,
the Company shall not be required to provide any documents or information to an Underwriter or other sales agent or placement agent if
such Underwriter or other sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering
or other offering involving a registration as an Underwriter or broker, sales agent or placement agent, as applicable.
| 3.2 | Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company.
It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities,
such as Underwriters’ or agents’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as
set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing
the Holders. |
| 3.3 | Requirements for Participation in Underwritten Offerings. The Holders of Registrable Securities
shall provide such information as may reasonably be requested by the Company, or the managing Underwriter or placement agent or sales
agent, if any, in connection with the preparation of any Registration Statement or Prospectus, including amendments and supplements thereto,
in order to effect the registration of any Registrable Securities under the Securities Act pursuant to ARTICLE 2 and in connection
with the Company’s obligation to comply with federal and applicable state securities Laws. Notwithstanding anything in this Agreement
to the contrary, if any Holder does not timely provide the Company with its requested Holder Information, the Company may exclude such
Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the
advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to withhold such
information. No Person may participate in any Underwritten Offering or other coordinated offering for equity securities of the Company
pursuant to a Registration initiated by the Company hereunder unless such Person (i) agrees to sell such Person’s securities on
the basis provided in any arrangements approved by the Company and (ii) timely completes and executes all customary questionnaires, powers
of attorney, indemnities, lock-up agreements, underwriting or other agreements and other customary documents as may be reasonably required
under the terms of such arrangements. The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3
shall not affect the registration of the other Registrable Securities to be included in such Registration. |
| 3.4 | Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights. |
| 3.4.1 | Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a
Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received copies
of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare
and file such supplement or amendment as soon as practicable after the time of such notice), or until he, she or it is advised in writing
by the Company that the use of the Prospectus may be resumed. |
| 3.4.2 | If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration
at any time would (i) require the Company to make an Adverse Disclosure, (ii) require the inclusion in such Registration Statement of
financial statements that are unavailable to the Company for reasons beyond the Company’s control or (iii) in the good faith judgment
of the majority of the Board, be seriously detrimental to the Company, and the majority of the Board concludes as a result that it is
essential to defer such filing, initial effectiveness or continued use at such time, the Company may, upon giving prompt written notice
of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay or suspension), delay
the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good
faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under this Section 3.4.2,
the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to
any Registration in connection with any sale or offer to sell Registrable Securities until such Holder receives written notice from the
Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice
and its contents. |
| 3.4.3 | Subject to Section 3.4.4, if (i) during the period starting with the date 60 days prior to the
Company’s good faith estimate of the date of the filing of, and ending on a date 120 days after the effective date of, a Company-initiated
Registration, and provided that the Company continues to actively employ, in good faith, all commercially reasonable efforts to maintain
the effectiveness of the applicable Shelf Registration, or (ii) if, pursuant to Section 2.1.4, Holders have requested an Underwritten
Shelf Takedown and the Company and such Holders are unable to obtain the commitment of underwriters to firmly underwrite such offering,
then, in each case, the Company may, upon giving prompt written notice of such action to the Holders, delay any other registered offering
pursuant to Section 2.1.4. |
| 3.4.4 | The right to delay or suspend any filing, initial effectiveness or continued use of a Registration Statement
pursuant to Section 3.4.2 or a registered offering pursuant to Section 3.4.3 shall be exercised by the Company, in the aggregate,
for not more than 90 consecutive calendar days or more 120 total calendar days in each case, during any 12-month period. |
| 3.5 | Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company,
at all times while it shall be a reporting company under the Exchange Act, covenants to use commercially reasonable efforts to file timely (or obtain extensions in respect
thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to
Sections 13(a) or 15(d) of the Exchange Act. Upon the request of any Holder, the Company shall deliver to
such Holder a written certification of a duly authorized officer as to whether is has complied with such requirements. |
ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION
| 4.1.1 | The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities,
its officers, directors and agents and each Person who controls such Holder (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, reasonable outside attorneys’
fees) resulting from any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration
Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto filed pursuant to this Agreement or any
omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Company by such Holder
expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person who controls such
Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification
of the Holder. |
| 4.1.2 | In connection with any Registration Statement filed pursuant to this Agreement in which a Holder of Registrable
Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits
as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”)
and, to the extent permitted by law, shall indemnify the Company, its directors, officers and agents and each Person who controls the
Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket
expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement
of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such untrue statement is contained in (or not contained in,
in the case of an omission) any information or affidavit so furnished in writing by such Holder expressly for use therein; provided,
however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and
the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify
the Underwriters, their officers, directors and each person or entity who controls such Underwriters (within the meaning of the Securities
Act) to the same extent as provided in the foregoing with respect to indemnification of the Company. |
| 4.1.3 | Any Person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying
party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair
any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party)
and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than
one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent
to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money
is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of
fault and culpability on the part of such indemnified party or which settlement does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. |
| 4.1.4 | The indemnification provided for under this Agreement shall remain in full force and effect regardless
of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified
party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering
also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the
Company’s or such Holder’s indemnification is unavailable for any reason. |
| 4.1.5 | If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable
or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses
referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion
as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied
by, in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s
relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the
liability of any Holder under this Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in
such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred
to above shall be deemed to include, subject to the limitations set forth in Section 4.1.1, 4.1.2 and 4.1.3 above,
any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.1.5 were determined
by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred
to in this Section 4.1.5. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution pursuant to this Section 4.1.5 from any Person who was not guilty of such fraudulent misrepresentation. |
| 4.2 | Waiver of Medallion Guaranty. The Company agrees to use commercially reasonable efforts to enter
into that certain indemnification agreement, substantially in the form attached as Exhibit B to this Agreement, in favor of Continental
Stock Transfer & Trust Company (or any successor transfer agent or warrant agent of the Company) in connection with the waiver of
any requirement to provide a medallion guarantee in connection with any Transfer of any equity securities of the Company by any Sponsor
Holder or Cantor or any of their respective Permitted Transferees; provided that, in each case, as a prerequisite to the Company’s
entry into such indemnification agreement, such Sponsor Holder or Cantor or their respective Permitted Transferee enters into an indemnification
agreement, substantially in the form attached as Exhibit C to this Agreement, in favor of the Company. |
ARTICLE 5
MISCELLANEOUS
| 5.1 | 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 email or other electronic means (including email), (iii)
one (1) 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). Any notice or communication
under this Agreement must be addressed, if to the Company, to: USA
Rare Earth, Inc., Attention: [●], Email: [●], with a copy (which shall not constitute notice) to King & Spalding, 1100
Louisiana, Suite 4100, Houston, Texas 77002-5213, Attention: Trevor G. Pinkerton, Tim FitzSimons, Email: TPinkerton@kslaw.com, TFitzsimons@kslaw.com;
and if to any Holder, at such Holder’s address or contact information as set forth in the Company’s books and records. Any
party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change
of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1. |
| 5.2 | Assignment; No Third Party Beneficiaries. |
| 5.2.1 | This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or
delegated by the Company in whole or in part. |
| 5.2.2 | This Agreement and the rights, duties and obligations of the Holders hereunder may not be assigned or
delegated by the Holders in whole or in part; provided, however, that, subject to Section 5.2.5, a Holder may assign the
rights and obligations of such Holder hereunder relating to particular Registrable Securities in connection with the transfer of such
Registrable Securities to a Permitted Transferee of such Holder (it being understood that no such Transfer shall reduce any rights of
the Holder with respect to Registrable Securities still held by such Holder). A Permitted Transferee receiving Registrable Securities
from a Sponsor Holder shall become a Sponsor Holder, a Permitted Transferee receiving Registrable Securities from an USARE Holder shall
become a USARE Holder and a Permitted Transferee receiving Registrable Securities from an Other Holder shall become an Other Holder. |
| 5.2.3 | This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each
of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees. |
| 5.2.4 | This Agreement shall not confer any rights or benefits on any Persons that are not parties hereto, other
than as expressly set forth in this Agreement and Section 5.2 hereof. |
| 5.2.5 | No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall
be binding upon or obligate the Company unless such assignment is permitted under Section 5.2.2 unless and until the Company shall
have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) the written agreement of the assignee,
in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished
by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section
5.2 shall be null and void. |
| 5.3 | Counterparts. This Agreement 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. |
| 5.4 | Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or
related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of
the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require
or permit the application of Laws of another jurisdiction. |
| 5.5 | Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the
transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does
not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject
matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction
of each such court in any such Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue
or to convenience of forum, (iii) agrees that all claims in respect of the Legal Proceeding shall be heard and determined only in any
such court, and (iv) agrees not to bring any Legal Proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted
by Law or to commence Legal Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce
judgments obtained in any Legal Proceeding, suit or proceeding brought pursuant to this Section 5.5. |
| 5.6 | Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH
PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. |
| 5.7 | Amendments and Modifications. Upon the written consent of the Company and the Holders of at least
a majority in interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions
set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided,
however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects the Sponsor Holders shall
also require the written consent of the Sponsor Majority Holders so long as the Sponsor Holders hold, in the aggregate, at least two percent
(2%) of the outstanding shares of Common Stock (on an as converted to Common Stock basis); and provided, further, that any amendment
hereto or waiver hereof that adversely affects one Holder, solely in his, her or its capacity as a holder of the shares of capital stock
of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder
so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of
a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies
of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as
a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party. |
| 5.8 | Other Registration Rights. Other than as provided in the Warrant Agreement, dated as of May 24,
2023, between the Company and Continental Stock Transfer & Trust Company, the Company represents and warrants that no Person, other
than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to
include such securities of the Company in any Registration Statement filed by the Company for the sale of securities for its own account
or for the account of any other Person. Further, the Company represents and warrants that this Agreement supersedes any other registration
rights agreement or agreement with similar terms and conditions, and in the event of a conflict between any such agreement or agreements
and this Agreement, the terms of this Agreement shall prevail. |
| 5.9 | Term. This Agreement shall terminate upon the earlier of (i) the fifth anniversary of the date
of this Agreement and (ii) with respect to any Holder, the date that such Holder no longer holds any Registrable Securities. The provisions
of ARTICLE 4 shall survive any termination. |
| 5.10 | Holder Information. Each Holder agrees, if requested in writing, to represent to the Company the
total number of Registrable Securities held by such Holder in order for the Company to make determinations hereunder. |
| 5.11 | Additional Holders; Joinder. In addition to Persons who may become Holders pursuant to Section
5.2, subject to the prior written consent of at least a majority in interest of the aggregate Registrable Securities at the time in
question, the Company may make any Person who acquires Common Stock or rights to acquire Common Stock after the date hereof a party to
this Agreement (each such Person, an “Additional Holder”) by obtaining an executed joinder to this Agreement
from such Additional Holder in the form of Exhibit A attached hereto (a “Joinder”). Such Joinder shall
specify the rights and obligations of the applicable Additional Holder under this Agreement. Upon the execution and delivery and subject
to the terms of a Joinder by such Additional Holder, the Common Stock of the Company then owned, or underlying any rights then owned,
by such Additional Holder (the “Additional Holder Common Stock”) shall be Registrable Securities to the extent
provided herein and therein, and such Additional Holder shall be a Holder under this Agreement with respect to such Additional Holder
Common Stock. |
| 5.12 | 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. |
| 5.13 | Entire Agreement; Restatement. 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, 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 with respect
to the subject matter contained herein. Upon the Closing, the Original RRA shall no longer be of any force or effect. |
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first written above.
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COMPANY: |
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USA Rare Earth, Inc., a Delaware corporation |
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By: |
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Name: |
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Title: |
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USARE HOLDERS: |
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[●] |
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[●] |
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[●] |
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SPONSOR: |
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INFLECTION POINT HOLDINGS II LLC,
a Delaware limited liability company |
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By: |
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Name: |
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Title: |
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OTHER SPONSOR HOLDERS: |
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[●] |
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By: |
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Name: |
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Title: |
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CANTOR FITZGERALD & CO. |
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By: |
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Exhibit A
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
JOINDER
The
undersigned is executing and delivering this joinder (this “Joinder”)
pursuant to the Amended and Restated Registration Rights Agreement, dated as of [____], 2024 (as the same may hereafter be amended, the
“Registration Rights Agreement”), among USA
Rare Earth, Inc., a Delaware corporation (the “Company”), and the other Persons named as parties therein. Capitalized
terms used but not otherwise defined herein shall have the meanings provided in the Registration Rights Agreement.
By executing and delivering
this Joinder to the Company, and upon acceptance hereof by the Company upon the execution of a counterpart hereof, the undersigned hereby
agrees to become a party to, to be bound by and to comply with the Registration Rights Agreement as a Holder of Registrable Securities
in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement as [a Sponsor Holder / a USARE
Holder / an Other Holder], and the undersigned’s [shares of Common Stock] shall be included as Registrable Securities under the
Registration Rights Agreement to the extent provided therein; provided, however, that the undersigned and its permitted assigns
(if any) shall not have any rights as Holders, and the undersigned’s (and its transferees’) [shares of Common Stock] shall
not be included as Registrable Securities, for purposes of the Excluded Sections.
For purposes of this Joinder,
“Excluded Sections” shall mean [ ].
Accordingly, the undersigned
has executed and delivered this Joinder as of the __________ day of __________, 20__.
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Signature of Stockholder |
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Print Name of Stockholder
Its: |
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Address: |
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Agreed and Accepted as of
____________, 20__
Exhibit B
USA Rare Earth, Inc.
[●]
[●]
[ ], 2024
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Re: Indemnification in-lieu-of Medallion Signature
Guarantee
To whom it may concern:
This letter is in regards
to the transfer by [Inflection Point Holdings II LLC / Name of Sponsor Holder] to [ ], of [ ] [shares
of Common Stock / warrants] of USA Rare Earth, Inc. (the “Company”). Please be advised that the Company authorizes
Continental Stock Transfer & Trust Company to process the subject transfer, which includes securities that have been duly endorsed
by the registered holder but do not bear a customary medallion signature guarantee. The Company agrees to indemnify Continental Stock
Transfer & Trust Company against all losses, liability or costs that may ensue as a result of its processing the above referenced
transaction.
I, [ ● ],
a duly authorized officer of the Company, have the authority to execute this indemnification on behalf of the Company.
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Very truly yours, |
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USA Rare Earth, Inc. |
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By: |
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Exhibit C
[Inflection Point Holdings II LLC / Name of
Sponsor Holder]
[●]
[●]
[ ], 2024
USA Rare Earth, Inc.
[●]
[●]
Re: Indemnification in-lieu-of Medallion Signature
Guarantee
To whom it may concern:
This letter is in regards
to the transfer by [Inflection Point Holdings II LLC / Name of Sponsor Holder] (the “Transferor”) to [ ],
of [ ] [shares of Common Stock / warrants] of USA Rare Earth, Inc. (the “Company”). Please be advised
that the Transferor authorizes the Company and Continental Stock Transfer & Trust Company to process the subject transfer, which includes
securities that have been duly endorsed by the Transferor but do not bear a customary medallion signature guarantee. The Transferor agrees
to indemnify the Company against all losses, liability or costs that may ensue as a result of its processing the above referenced transaction.
I, [ ● ],
a duly authorized officer of the Company, have the authority to execute this indemnification on behalf of the Company.
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Very truly yours, |
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[Inflection Point Holdings II LLC / Name of Sponsor Holder] |
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By: |
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Name: |
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Exhibit C
Form of Warrant
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH
THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
USA
Rare Earth, Inc.
| Warrant Shares: [_______] |
Initial Exercise Date: [_______], 202[●] |
THIS COMMON STOCK PURCHASE WARRANT
(the “Warrant”) certifies that, for value received, [_____________] or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on [_____], 202[●]
(the “Termination Date”) but not thereafter, to subscribe for and purchase from USA Rare Earth, Inc., a Delaware corporation
(the “Company”), up to [______] shares (as subject to adjustment hereunder, the “Warrant Shares”)
of common stock, par value $[0.0001] per share, of the Company (the “Common Stock”). The purchase price of one share
of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase
Agreement (the “Purchase Agreement”), dated as of [●], by and among the Company and the purchasers
signatory thereto.
Section 2. Exercise.
| (a) | Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in
whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the
Company (or such other office or agency that the Company may designate by notice in writing to the registered Holder at the address of
the Holder appearing on the books of the Company), as applicable, of a duly executed facsimile copy or PDF copy submitted by e-mail (or
e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Not later than
the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date
of exercise as aforesaid, the Holder shall deliver to the Company the aggregate Exercise Price for the shares specified in the applicable
Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified
in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required,
nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder
has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall
surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise
is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal
to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant
Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business
Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of
the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number
of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof. |
| (b) | Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $12.00,
subject to adjustment hereunder (the “Exercise Price”). Notwithstanding the foregoing, at any time that the Conversion
Price (as defined in the Certificate of Designation) adjusts (or is otherwise lowered) pursuant to the terms of the Certificate of Designation
(each, an “Adjustment Time”, and such adjusted Conversion Price related thereto, each, an “Adjusted Conversion
Price”), if the Exercise Price then in effect immediately following such Adjustment Time is greater than such related Adjusted
Conversion Price, immediately following such Adjustment Time the Exercise Price then in effect shall automatically be lowered by an amount
equal to the difference between the Conversion Price immediately prior to the Adjustment Time and the Adjusted Conversion Price immediately
after the Adjustment Time. Simultaneously with any adjustment to the Exercise Price pursuant to this Section 2(b), the number of
Warrant Shares that may be purchased upon exercise of this Warrant shall be increased proportionately, so that after such adjustment,
the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise Price
in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein). |
| (c) | Cashless Exercise. If at any time after the six (6) month anniversary of the Closing Date, there
is no effective registration statement registering, or the prospectus contained therein is not available for the resale of the Warrant
Shares by the Holder, then this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing ((A-B) multiplied
by (X)) by (A), where: |
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(A) = |
as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
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(B) = |
the Exercise Price of this Warrant, as adjusted hereunder; and |
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(X) = |
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant
Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this
Section 2(c).
“Bid Price” means,
for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted
on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding
date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected
in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“VWAP” means, for
any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on
a Trading Market, the daily volume weighted average price of the Common Stock for the 20 Trading Day preceding such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume
weighted average price of the Common Stock for the 20 Trading Days preceding such date (or the nearest preceding date) on OTCQB or OTCQX
as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are
then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the average
of the highest closing bid price per share and the lowest closing ask price per share of the Common Stock for the 20 Trading Days preceding
such date, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected
in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
Notwithstanding anything herein to the
contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c).
| (d) | Mechanics of Exercise. |
| (i) | Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased
hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s
balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system if the Company is then a participant
in such system and there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by the Holder, and otherwise by physical delivery of a certificate, (or reasonable evidence of issuance by book entry of ownership
of the Warrant Shares) registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the
date that is the later of (i) the Standard Settlement Period after the delivery to the Company of the Notice of Exercise, and (ii) one
(1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”);
provided, however, in any event, the Company shall not be obligated to deliver Warrant Shares until it has
received the aggregate Exercise Price therefor. Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate
purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective
of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the
case of a cashless exercise) is received no later than the number of Trading Days comprising the Standard Settlement Period following
delivery of the Notice of Exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long
as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock
as in effect on the date of delivery of the Notice of Exercise. |
| (ii) | Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part,
the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the
Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant. |
| (iii) | Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the
Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date (subject to receipt of the aggregate Exercise Price
for the applicable exercise (other than in the case of a cashless exercise)), then the Holder will have the right to rescind such exercise
prior to the delivery of the Warrant Shares. |
| (iv) | No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall
be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon
such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to
such fraction multiplied by the Exercise Price or round up to the next whole share. |
| (v) | Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder
for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses
shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed
by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other
than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly
executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all
fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares pursuant to the terms of this Warrant. |
| (vi) | Closing of Books. The Company will not close its stockholder books or records in any manner intended
to prevent the timely exercise of this Warrant, pursuant to the terms hereof. |
| (e) | Holder’s Exercise Limitations. The Holder may notify the Company in writing in the
event it elects to be subject to the provisions contained in this Section 2(e); however, the Holder shall not be subject to
this Section 2(e) unless he, she or it makes such election. If the election is made, the Company shall not effect any
exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section
2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of
Exercise, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder or any
of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of 4.9%,
9.9%, 19.9% (or such other amount as the Holder may specify) (the “Beneficial Ownership Limitation”). For
purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder, its Affiliates and
Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which
such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise
of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution
Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including,
without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the
limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in
the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the
Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the
Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation
contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and Attribution Parties) and, of which portion of this Warrant is
exercisable up to the Beneficial Ownership Limitation shall be in the sole discretion of the Holder, and the submission of a Notice
of Exercise shall be deemed to be the Holder’s good faith determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable, in each case, subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises
of this Warrant that are not in compliance with the Beneficial Ownership Limitation. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability
for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation. For purposes of this Section
2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common
Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B)
a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth
the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two (2) Trading
Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this
Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common
Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease the Beneficial Ownership Limitation
applicable to the Holder, provided, however, that any such increase in the Beneficial Ownership Limitation will not be effective until
the sixty-first (61st) day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor
holder of this Warrant. |
Section 3. Certain Adjustments.
| (a) | Stock Dividends and Splits. If the Company at any time while this Warrant is outstanding: (i) pays
a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent
securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the
Company upon exercise of this Warrant or any cash distributions), (ii) subdivides outstanding shares of Common Stock into a larger number
of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares,
or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise
Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares,
if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding
immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that
the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become
effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and
shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification. |
| (b) | VWAP Reset. If on the twenty-first trading day following the date that is six months after the
Closing Date, the VWAP (as defined by Bloomberg) of the Common Stock for the twenty trading period commencing on the date that is six
months after the Closing Date (the “Measurement Price”) is less than the Exercise Price then in effect, then the Exercise
Price then in effect shall be reduced to an amount equal to the greater of (i) the Measurement Price and (ii) $7.50. |
| (c) | Adjustment Upon Issuance of Common Stock. If and whenever on or after the Closing Date, the
Company issues or sells, or in accordance with this Section 3(c) is deemed to have issued or sold, any shares of Common Stock
(including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but
excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Exempt Issuance) for a
consideration per share (the “New Issuance Price”) less than the lesser of (i) $10.00 and (ii) the
Exercise Price then in effect (such price thresholds described in clauses (i) and (ii), collectively, the “Applicable
Price”, and each such issue, sale or deemed issuance or sale, a “Dilutive Issuance”), in issuances and
sales conducted for the purpose of raising capital by the Company where the aggregate amount of consideration received by the
Company, together with all prior issuances and sales conducted for the purpose of raising
capital by the Company on or after the Closing Date that were excluded from this Section 3(c) by this clause, exceeds $500,000,
then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance
Price. |
As used in this Warrant, the following
terms shall have the following meanings:
| |
(I) |
“Common Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock, and any securities of the Company that when paired with one or more other securities of the Company or another entity entitles the holder thereof to receive, Common Stock. |
| |
(II) |
“Convertible Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock and any securities of the Company that when paired with one or more other securities of the Company or another entity entitles the holder thereof to receive, Common Stock. |
| |
(III) |
“Exempt Issuance” means the issuance of (a) any securities of the Company to employees, officers or directors, consultants, contractors, vendors or other agents of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued pursuant to the Purchase Agreement or the Business Combination Agreement and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Warrant, provided that such securities have not been amended since the date of this Warrant to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (c) the Underlying Shares, (d) securities issued pursuant to any merger, acquisition or strategic transaction or partnership approved by a majority of the directors of the Company, provided that (i) such securities are issued as “restricted securities” (as defined in Rule 144) or are issued pursuant to an effective registration statement pursuant to the Securities Act and (ii) any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (e) any securities issued by the Company pursuant to any legal settlement or similar arrangement agreed or entered into by the Company, provided that, in the aggregate, not more than [●]2 shares of Common Stock are issued or deemed issued or issuable upon conversion, settlement, exercise or exchange of any such securities that are Options or Convertible Securities, but any such Exempt Issuance shall not include a transaction in which the Company is issuing securities (i) primarily for the purpose of raising capital, including an at-the-market offering, and (ii) to an entity whose primary business is investing in securities. |
| 2 | NTD: To be 1,000,000 multiplied by the Exchange Ratio |
| |
(IV) |
“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities; and |
| |
|
|
| |
(V) |
“Option Value” means the value of an Option based on the Black-Scholes Option Pricing model obtained from the “OV” function on Bloomberg determined as of (A) the Trading Day prior to the public announcement of the issuance of the applicable Option, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, for pricing purposes and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of the applicable Option as of the applicable date of determination, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of (A) the Trading Day immediately following the public announcement of the applicable Option if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iii) the underlying price per share used in such calculation shall be the highest weighted average price of the Common Stock during the period beginning on the Trading Day prior to the execution of definitive documentation relating to the issuance of the applicable Option and ending on (A) the Trading Day immediately following the public announcement of such issuance, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iv) a zero cost of borrow and (v) a 360 day annualization factor. |
For purposes of determining the adjusted
Exercise Price under this Section 3(c), the following shall be applicable:
| (i) | Options and Convertible Securities. The consideration per share received by the Company for Common
Stock deemed to have been issued pursuant to Section 3(c)(ii), relating to Options and Convertible Securities, shall be determined
by dividing: (x) the total amount, if any, received or receivable by the Company as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such
Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise
of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by (y) the maximum number of
shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent
adjustment of such number) deemed to be issued pursuant to Section 3(c)(ii) upon the issuance of such Options or Convertible Securities. |
| (ii) | Deemed Issuance of Options and Convertible Securities. If the Company at any time or from time
to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth
in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but
without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options
or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed
to be outstanding and to have been issued as of the time of such issue or, in case such a record date shall have been fixed, as of the
close of business on such record date. |
| (iii) | Change in Option Price. If, after the Initial Exercise Date, the purchase price provided for in
any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities,
or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for Common Stock increases
or decreases at any time, (other than (x) proportional changes in conversion or exercise prices, as applicable, in connection with an
event referred to in Section 3(a) above and (y) automatic adjustments to such terms pursuant to anti-dilution or similar provisions
of such Option or Convertible Security which are not more favorable to the holder thereof than the anti-dilution and similar provisions
set forth herein), the Exercise Price in effect at the time of such increase or decrease shall be adjusted to the Exercise Price, which
would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price,
additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold.
For purposes of this Section 3(c)(iii), if the terms of any Option or Convertible Security that was
outstanding as of the Initial Exercise Date are increased or decreased in the manner described in the immediately preceding sentence,
then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof
shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 3(c) shall
be made if such adjustment would result in an increase of the Exercise Price then in effect. |
| (iv) | Calculation of Consideration Received. In case any Option is issued in connection with the issue
or sale of other securities of the Company, together comprising one integrated transaction, (x) the Options will be deemed to have been
issued for the Option Value of such Options and (y) the other securities issued or sold in such integrated transaction shall be deemed
to have been issued or sold for the difference of (I) the aggregate consideration received by the Company less any consideration paid
or payable by the Company pursuant to the terms of such other securities of the Company, less (II) the Option Value. If any shares of
Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration other
than cash received therefor will be deemed to be the net amount received by the Company therefor. If any shares of Common Stock, Options
or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company
will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the
amount of consideration received by the Company will be the closing sale price of such publicly traded securities on the date of receipt.
If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with
any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such
portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible
Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly
by the Company and a majority in interest of the Securities then outstanding. If such parties are unable to reach agreement within ten
(10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration
will be determined within five (5) Business Days after the tenth (10th) day following the Valuation Event by an independent, reputable
appraiser jointly selected by the Company and a majority in interest of the Securities then outstanding. The determination of such appraiser
shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company. |
| (v) | Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose
of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities
or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to
be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend
or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be. |
| (vi) | Expiration or Termination of Options or Convertible Securities. Upon the expiration or termination
of any unexercised Option or unconverted or unexchanged Convertible Securities (or portion thereof) which resulted (either upon its original
issuance or upon a revision of its terms) in an adjustment to the Exercise Price pursuant to the terms of Section 3(b), the Exercise
Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Securities (or portion thereof)
never been issued. |
| (d) | Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above,
if at any time after the Initial Exercise Date the Company grants, issues or sells any Common Stock Equivalents or rights to purchase
stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase
Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase
Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, any applicable Beneficial Ownership
Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no
such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale
of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate
in any such Purchase Right would result in the Holder exceeding any applicable Beneficial Ownership Limitation, then the Holder shall
not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result
of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time,
if ever, as its right thereto would not result in the Holder exceeding any applicable Beneficial Ownership Limitation). To the extent
that the issue price of such Purchase Rights would result in an adjustment of the Conversion Price pursuant to Section 7(c), such adjustment
shall not occur to the extent the Holders were granted the right to acquire such Purchase Rights on the applicable terms. |
| (e) | Pro Rata Distributions. During such time after the Initial Exercise Date as this Warrant is outstanding,
if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of
shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other
similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the
Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the
Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations
on exercise hereof, including without limitation, any applicable Beneficial Ownership Limitation) immediately before the date of which
a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock
are to be determined for the participation in such Distribution (provided, however, that, to the extent that
the Holder’s right to participate in any such Distribution would result in the Holder exceeding any applicable Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of
any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding any applicable Beneficial
Ownership Limitation). |
| (f) | Fundamental Transaction. If, at any time after the Initial Exercise Date while this Warrant is
outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company
with or into another Person, (ii) the Company (and all of its subsidiaries, taken as a whole), directly or indirectly, effects any sale,
lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of
related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another
Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities,
cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other
than as a result of a stock split, combination or reclassification of shares of Common Stock covered by Section 3(a)), or (v) the
Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another
Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock (not including
any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons
making or party to, such stock or share purchase agreement or other business combination) or 50%
or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon
any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been
issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder
(without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number
of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any
additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental
Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such
exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on
the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the
Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of
any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the
contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the
Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental
Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant
from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining
unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, that if
holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of
Common Stock will be deemed to have received common stock or ordinary shares of the Successor Entity (which Successor Entity may be
the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value”
means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on
Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A)
a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public
announcement of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to
the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365
day annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated
Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the
sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in
such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the
announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier)
and ending on the Trading Day of the Holder’s request pursuant to this Section 3(f), (D) a remaining option time equal
to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a
zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such
other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation of
the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not
the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this
Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(f) pursuant to written
agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior
to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a
security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which
is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to
the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the
exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the Exercise Price
hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such
Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such
exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such
Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such
Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such
Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the
obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity
had been named as the Company herein. |
| (g) | Calculations. All calculations under this Section 3 shall be made to the nearest cent or
the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed
to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if
any) issued and outstanding. |
| (h) | Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to
this Section 3(a), the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased
proportionately so that after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares
shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment (without regard to any limitations on
exercise contained herein). |
| (i) | Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision
of this Section 3, the Company shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price
after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring
such adjustment. |
| (ii) | Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution
in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its subsidiaries) is a party,
any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its
last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to
the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders
of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y)
the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close,
and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common
Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange;
provided, that, notwithstanding the foregoing, any notice delivery requirement hereunder shall also be deemed satisfied by filing
or furnishing such communication with the Commission via the EDGAR system; provided, further, that the failure to deliver such
notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided to the Holder in accordance with the terms of this Warrant constitutes, or contains,
material, non-public information regarding the Company or any of the subsidiaries, the Company shall simultaneously file such notice with
the Commission pursuant to a Current Report on Form 8-K, unless determined by the Company that such filing would be harmful to the Company
at such time, in which case the Company shall file such 8-K as soon as is reasonably practicable in its discretion. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event
triggering such notice except as may otherwise be expressly set forth herein. |
| (j) | Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the
Company may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise
Price to any amount and for any period of time deemed appropriate by the board of directors of the Company. |
Section 4. Transfer of Warrant.
| (a) | Transferability. Subject to compliance with any applicable securities laws and the conditions set
forth in Section 4(d) hereof and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights
hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued. |
| (b) | New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are
to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which
may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant
or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the
Initial Exercise Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto. |
| (c) | Warrant Register. The Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company
may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary. |
| (d) | Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any
transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement
under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale
restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such
transfer, that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase
Agreement. |
| (e) | Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that
it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account
and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or
any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act. |
Section 5. Miscellaneous.
| (a) | No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i),
except as expressly set forth in Section 3. |
| (b) | Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate
relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which,
in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate,
if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in
lieu of such Warrant or stock certificate. |
| (c) | Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or
the expiration of any right required or granted herein shall not be a Business Day, then, such action may be taken or such right may be
exercised on the next succeeding Business Day. |
| (i) | The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized
and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase
rights under this Warrant (without regard to any limitation on exercise set forth herein and assuming an Exercise Price equal to the lower
of (i) $[5.00] and (ii) the Exercise Price then in effect). The Company further covenants that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase
rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may
be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon
which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase
rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant
Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges
created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such
issue). |
| (ii) | Except and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its Certificate of Incorporation (or any Certificate of Designation thereto) or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this
Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant
Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action
as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares
upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under
this Warrant. |
| (iii) | Before taking any action which would result in an adjustment in the number of Warrant Shares for which
this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof. |
| (e) | Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be determined in accordance with the provisions of the Purchase Agreement. |
| (f) | Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this
Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and
federal securities laws. |
| (g) | Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder
on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without
limiting any other provision of this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply
with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts
as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those
of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights,
powers or remedies hereunder. |
| (h) | Notices. Any notice, request or other document required or permitted to be given or delivered to
the Holder by the Company shall be delivered in accordance with the notice provisions of the Purchase Agreement. |
| (i) | Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder
to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise
to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company. |
| (j) | Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees
to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate. |
| (k) | Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and
obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and
the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time
to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares. |
| (l) | Amendment. This Warrant may be modified, waived or amended or the provisions hereof waived with
the written consent of the Company and the Holder. |
| (m) | Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Warrant. |
| (n) | Headings. The headings used in this Warrant are for the convenience of reference only and shall
not, for any purpose, be deemed a part of this Warrant. |
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have caused
this Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.
| [USA RARE EARTH, INC.] |
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Address for Notice: |
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| By: |
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| Name: |
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| Title: |
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Email: |
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| With a copy to (which shall not constitute notice): |
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IN WITNESS WHEREOF, the undersigned have caused
this Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser:
Signature of Authorized Signatory of Purchaser:
Name of Authorized Signatory:
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
Subscription Amount:
Shares of Preferred Stock:
Warrant Shares:
EIN Number:
EXHIBIT A
NOTICE OF EXERCISE
(1) The undersigned hereby elects
to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders
herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form
of (check applicable box):
| ☐ | in lawful money of the United States; or |
| ☐ | if permitted the cancellation of such number of Warrant Shares
as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number
of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c). |
(3) Please issue said Warrant
Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following
DWAC Account Number:
(4) Accredited Investor.
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
| Name of Investing Entity:___________________________________________________________________ |
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| Signature of Authorized Signatory of Investing Entity:________________________________________________ |
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| Name of Authorized Signatory:_________________________________________________________________ |
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| Title of Authorized Signatory:___________________________________________________________________ |
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| Date:__________________________________________________________________________________________ |
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
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| Dated: _______________ __, ______ |
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Exhibit 10.4
FEE REDUCTION AGREEMENT
August 20, 2024
WHEREAS, pursuant to that certain Underwriting
Agreement between Inflection Point Acquisition Corp. II, a Cayman Island exempted company (together with its present and future subsidiaries
and affiliates and any Successor (as defined herein), the “Company”), and Cantor Fitzgerald & Co., as Representative
of the several Underwriters (“CF&CO”), dated May 24, 2023 (as it may be amended from time to time, the “Underwriting
Agreement”), the Company previously agreed to pay to CF&CO an aggregate cash amount of $13,100,000 as “deferred
underwriting commissions” (the “Original Deferred Fee”) upon the consummation of a Business Combination,
as contemplated by the final prospectus of the Company, filed with the Securities and Exchange Commission (the “SEC”)
(File No. 333- 271128), and dated May 24, 2024. Capitalized terms used in this letter agreement (this “Agreement”)
and not defined shall have their respective meanings ascribed to such terms in the Underwriting Agreement. For the avoidance of doubt,
all references to the “Company” herein shall also refer to the publicly traded surviving or successor entity to the Company
following the consummation of any Business Combination (the “Successor”).
WHEREAS, the Company is contemplating a
potential Business Combination(the “Transaction”) with USA Rare Earth, LLC , a Delaware LLC (including any present
and future subsidiaries and affiliates thereof, the “Target”).
For good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Company and CF&CO hereby agree as follows:
| 1. | Fee Reduction: In the event that the Company consummates the Transaction, CF&CO agrees that,
in lieu of the Original Deferred Fee that would otherwise be payable by the Company to CF&CO, pursuant to the Underwriting Agreement,
it will instead accept a reduced deferred fee comprised of either of the options set forth in Section 2 below (the “Reduced
Deferred Fee”), plus the Additional Cash Fee (defined below). For the avoidance of doubt, such fee reduction agreement only
applies to the consummation of the Transaction and not to any other potential Business Combination that may be contemplated or consummated
by the Company. |
| 2. | Payment of Reduced Deferred Fee and Additional Fee: |
| (a) | The Reduced Deferred Fee shall be payable by the Company to CF&CO as either: |
| (i) | A non-refundable cash fee of $4,000,000 (the “All- Cash Fee”), payable upon
the consummation of the Transaction (the “Closing”); or |
| (ii) | (x) a $2,000,000 non-refundable cash fee (the “Cash Portion”), plus (y)
$4,000,000 (the “Stock Portion”), payable in 400,000 shares, valued at $10.00 per share (the “CF&CO
Fee Shares”), of the publicly traded common equity securities of the public entity that survives the Transaction (the “New
Common Stock”). For purposes hereof, the Cash Portion and the Stock Portion shall be together referred to herein as the
“Cash/Stock Fee.” |
| (b) | The Company shall elect, in its sole discretion, whether to pay CF&CO the All-Cash Fee or the Cash/Stock
Fee, but the Company shall be required to make such election prior to the date on which the registration statement/proxy statement is
declared effective by the Securities and Exchange Commission. If the Company does not make such an election prior to such date, then the
Company shall be required to pay CF&CO the All-Cash Fee upon the Closing of the Transaction. |
| (c) | Additionally, solely if the Company elects to pay the All-Cash Fee, or if the All-Cash Fee otherwise becomes
payable by the Company to CF&CO pursuant to Section 2(b) above, then CF&CO hereby agrees to forfeit the 1,650,000 Placement Warrants
purchased by CF&CO in connection with the Offering for no consideration. |
| (d) | Furthermore, in addition to either the All-Cash Fee or the Cash/Stock Fee, upon the Closing of the Transaction,
the Company shall also pay CF&CO an additional non-refundable cash fee equal to 2.0% of the amount by which the Total Capital Raised
(as defined below) exceeds $50,000,000 (the “Additional Cash Fee”). |
For purposes hereof, the “Total
Capital Raised” shall mean the gross proceeds of unrestricted cash received or receivable by the Company (including any
Successor) or the Target on or following the date of this Agreement and prior to or, concurrent with the Transaction, including, for the
avoidance of doubt, any (x) amounts delivered from the Trust Account and (y) aggregate gross proceeds received or receivable by the Company
from any investors (including any investors in any PIPE (as defined herein), but excluding any investors who are affiliates of, investors
in or related persons of the Target prior to the Transaction).
| (e) | The All-Cash Fee, the Cash Portion and the Additional Cash Fee, as applicable, shall be payable in U.S.
dollars, free and clear of and without deduction for any and all present or future applicable taxes, levies, imposts, deductions, charges
or withholdings and all liabilities with respect thereto (with appropriate gross-up for withholding taxes) and will not be subject to
reduction by way of setoff or counterclaim. |
| 3. | Issuance of CF&CO Fee Shares: The Company hereby agrees that, upon the Closing, the Company
(or any Successor) shall issue, transfer and deliver, or cause to be issued, transferred and delivered, the CF&CO Fee Shares to CF&CO
payable hereunder in satisfaction of the Stock Portion of the Reduced Deferred Fee, in book-entry form, by irrevocable instruction from
the Company (or its Successor) to its duly appointed transfer agent for the shares of New Common Stock (the “Transfer Agent”). |
Any CF&CO Fee Shares so issued,
transferred and delivered to CF&CO in satisfaction of the Reduced Deferred Fee shall be validly issued, fully paid and non-assessable
and free and clear of all liens, encumbrances and other restrictions on the pledge, sale or other transfer of such shares of New Common
Stock (collectively, including any restrictions that may arise due to contractual “lock-ups,” but excluding any restrictions
that may arise due to applicable U.S. federal or state securities laws, “Restrictions”).
| 4. | Resale & Registration Rights: The Company further hereby agrees that all CF&CO Fee Shares
shall be issued, transferred and delivered to CF&CO with “registration rights,” enabling CF&CO to promptly resell,
freely trade and otherwise dispose of its CF&CO Fee Shares (as further described below), substantially consistent with those registration
rights received by any investor in any “public investment in private equity” (or “PIPE”) that closes
substantially concurrently with the Transaction (or if no PIPE closes in connection therewith, then substantially consistent with those
provided to the Sponsor with respect to any of the equity securities it holds in the Company) (collectively, the “Registration
Rights”). |
Pursuant to the Registration Rights
described above, the Company hereby agrees that it (or any Successor) shall:
| (a) | Prepare and, as promptly as practicable following the Closing (but in any event, no later than sixty (60)
days thereafter), file with the SEC a re-sale registration statement on Form S-1 (or any successor form, as applicable) to register the
re-sale of all of the CF&CO Fee Shares by CF&CO (the “Resale Registration Statement”); |
| (b) | Use its commercially reasonable efforts to cause the Resale Registration Statement to be declared effective
by the SEC by (i) the 45th calendar day after the date of the initial filing thereof, if the Company is notified (orally or in writing,
whichever is earlier) by the SEC that such Resale Registration Statement will not be reviewed by the SEC, (ii) by the 90th calendar day
after the date of the initial filing thereof, if such Resale Registration Statement is subject to review by the SEC, or (iii) in any event,
no later than the 180th calendar day after the Closing; |
| (c) | Use its commercially reasonable efforts to maintain (i) the effectiveness of the Resale Registration Statement
and (ii) the authorization for quotation and listing of the New Common Stock on the Nasdaq Stock Market (or any other “national
securities exchange” registered with the SEC under Section 6 of the Exchange Act), in each case, for so long as any CF&CO Fee
Shares are held by CF&CO; |
| (d) | Until the expiration of three (3) years following Closing, not, directly or indirectly, take any action
which would be reasonably expected to result in the deauthorization, delisting or suspension of the New Common Stock on the Nasdaq Stock
Market (or any other “national securities exchange” registered with the SEC under Section 6 of the Exchange Act; provided,
however, that this provision shall not apply to and shall not prevent the Company from engaging in any merger, sale, reorganization, exchange,
recapitalization, or business combination. |
| (e) | From and after the Closing and for so long as the Resale Rights Obligations (as defined herein) shall
be required to continue hereunder use commercially reasonable efforts to, (i) file timely (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a)
or 15(d) of the Exchange Act, and (ii) otherwise meet the public reporting requirements so that, from and after the twelve (12) month
anniversary of the Closing and for so long as any CF&CO Fee Shares held by CF&CO (and/or its affiliates) remain outstanding, CF&CO
(and/or its affiliates) will be entitled to re-sell, freely trade or otherwise dispose of all of the CF&CO Fee Shares issuable hereunder
without restriction or limitation pursuant to Rule 144 under the Act; |
| (f) | Upon CF&CO’s request, promptly (i) instruct and cause its Transfer Agent to promptly remove
any such “restrictive legends” from the CF&CO Fee Shares, and (ii) take any such further action as CF&CO may reasonably
request, in each case, to enable CF&CO (and/or its affiliates) to promptly resell, freely trade or otherwise dispose of the CF&CO
Fee Shares, upon either (x) the sale of the CF&CO Fee Shares pursuant to the Resale Registration Statement, or (y) the sale of the
CF&CO Fee Shares pursuant to Rule 144 under the Act from and after the twelve (12) month anniversary of the Closing; and |
| (g) | Upon reasonable request and reasonable advance notice by CF&CO, deliver to CF&CO a written certification
of a duly authorized officer as to whether it has complied with the requirements set forth in Sections 3(c)-(f) above |
(such obligations set forth in clauses
(a)-(g) above, the “Resale Rights Obligations”).
| 5. | Company Default: Without limiting any rights or remedies available to CF&CO hereunder, in the
event that the Company (or its Successor) is unable to, or otherwise does not, (a) pay or cause to be paid the full amount of (i) either,
if it previously elected, the (x) All-Cash Fee or (y) Cash Portion, as applicable, plus (ii) the Additional Cash Fee, in each case, to
CF&CO upon the Closing, in accordance with Section 2 above, or (b) if it elects to pay the Cash/Stock Fee, (i) issue, transfer and
deliver, or cause to be issued, transferred and delivered, the full amount of the CF&CO Fee Shares in satisfaction of the Stock Portion
of the Reduced Deferred Fee to CF&CO, free and clear of all Restrictions, upon the Closing, (ii) properly grant and enforce the Registration
Rights, in accordance with the terms thereof and hereof, and (iii) comply in all respects with the Resale Rights Obligations, such that
CF&CO (and/or its affiliates) are unable to promptly resell, freely trade or otherwise dispose of the CF&CO Fee Shares within
six (6) months of the Closing, then, in each of the foregoing cases set forth in (a)(i), (a)(ii) or (b)(i)-(iii), at the sole election
of CF&CO made by written notice provided to the Company, the Company (or its Successor) shall promptly (but in any event within five
(5) Business Days) after receipt of such notice, pay to CF&CO an amount in cash equal to $2,500,000 (the “Default Payment”)
and CF&CO will promptly after receipt of such payment return to the Company any CF&CO Fee Shares and Placement Warrants it may
still hold. |
| 6. | No Fees Refundable: For the avoidance of doubt, once paid or issued, no fees payable hereunder,
whether in cash or New Common Stock, respectively, will be refundable under any circumstances. |
| 7. | Further Assurances: Each of the Company and CF&CO will, upon request of the other, execute
such other documents, instruments or agreements as may be reasonable or necessary to effectuate the agreements set forth in this Agreement. |
| 8. | Confidentiality: This Agreement (including the terms set forth herein) is confidential, and neither
this Agreement (including the terms set forth herein) nor CF&CO’s role in the Transaction may be filed publicly or otherwise
disclosed by the Company to any other party (except the Target) without CF&CO’s prior written consent. However, the Company
or the Target may disclose the existence of this Agreement or the contents hereof without the prior written consent of the Representatives
(a) if the Company or the Target (as applicable) receive a request or is legally compelled or required under applicable law, regulation
or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority in a proceeding before
a court, arbitrator or administrative agency (it being understood that the Company will be required to disclose the effect of this Agreement
in filings with the Commission that describe or reflect the Company’s contractual obligations), (b) if the Company is required by
The Nasdaq Stock Market, (c) if the Company or the Target discloses on a need-to-know basis to the Company’s or the Target’s
officers, directors, employees, agents, attorneys, accountants, advisors or other representatives, who agree to hold such information
confidential or (d) in a funds flow or similar document related to the consummation of the initial Business Combination. However, the
Company shall, to the extent reasonably practicable in light of the circumstances, provide CF&CO with reasonable time and opportunity
to review and comment on any of the foregoing disclosures (unless repeating prior disclosures), and any such comments provided by CF&CO
shall be considered by the Company in good faith. |
| 9. | Termination: This Agreement will terminate automatically upon the earlier of: |
| (a) | the satisfaction in full of the payment of the Reduced Deferred Fee, including (i) the payment in full
of (x) either the All-Cash Fee or the Cash Portion, as applicable, plus (y) the Additional Cash Fee and any other cash fees or reimbursable
expenses payable by the Company to CF&CO in connection therewith (including, for the avoidance of doubt, if required hereby, the payment
in full of the Default Payment), and (ii) the issuance, transfer and delivery of the CF&CO Fee Shares to CF&CO, free and clear
of all Restrictions, including (x) the effectiveness of the Resale Registration Statement related thereto and the continued satisfaction
of the Resale Rights Obligations, (y) the removal of all restrictive legends on all CF&CO Fee Shares, enabling CF&CO (and/or its
affiliates) to promptly resell, freely trade or otherwise dispose of all such CF&CO Fee Shares, and (z) the sale by CF&CO (and/or
its affiliates) of all of the CF&CO Fee Shares issuable hereunder, in each case, upon the terms and conditions set forth herein; and |
| (b) | the abandonment by the Company of the Transaction. |
In the event of a termination pursuant
to sub-section (b) of this paragraph, (x) the Company agrees to provide prompt notice of such decision to abandon the Transaction to CF&CO;
and (y) the Original Deferred Fee shall become due and payable by the Company to CF&CO, in cash, upon the consummation of a Business
Combination, as originally set forth in the Underwriting Agreement.
| 10. | Successor: The Company shall cause any Successor to expressly assume all of the Company’s
obligations to CF&CO under this Agreement upon consummation of any Transaction. Moreover, if prior to the Closing, the agreements
executed by the Company in connection therewith do not directly provide for the assumption by the Successor of the Company’s obligations
under the Underwriting Agreement, as amended by this Agreement, the Company shall cause such Successor to (x) execute and deliver to CF&CO
a joinder agreement, in form and substance reasonably satisfactory to CF&CO, pursuant to which it shall join the Underwriting Agreement,
as amended by this Agreement, as a signatory and a party and thus be subject to all of the terms and conditions set forth therein and
herein that apply to the Company, and (y) comply with the obligations and covenants of the Company set forth therein and herein; provided,
however that the terms of this Agreement shall supersede such Underwriting Agreement in the event of a conflict between their terms. |
| 11. | Miscellaneous: The terms of this Agreement shall be interpreted, enforced, governed by and construed
in a manner consistent with the provisions of the Underwriting Agreement. Without limiting the foregoing, Sections 10.1, 10.2, 10.3, 10.5,
10.6, 10.7, 10.8, 10.9 and 10.10 of the Underwriting Agreement are hereby incorporated by reference into this Agreement. In this Agreement,
unless the context otherwise requires, the term “including” (and with correlative meaning “include”) shall be
deemed in each case to be followed by the words “without limitation.” The parties agree that they have jointly participated
in the drafting and negotiation of this Agreement, and in the event that any ambiguity or question of intent or interpretation of this
Agreement 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. |
| 12. | Underwriting Agreement. The Underwriting Agreement, as amended by this Agreement (together with
the other agreements and documents being delivered pursuant to or in connection with the Underwriting Agreement or this Agreement), constitute
the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersede all prior agreements and
understandings of the parties, oral and written, with respect to the subject matter hereof. Except as expressly provided in this Agreement,
which, for the avoidance of doubt, expressly contemplates that the Original Deferred Fee shall no longer be payable, due or owning to
CF&CO and shall be replaced in its entirety by the Reduced Deferred Fee, all of the terms and provisions in the Underwriting Agreement
are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Agreement does not constitute,
directly or by implication, an amendment, modification or waiver of any provision of the Underwriting Agreement, or any other right, remedy,
power or privilege of any party to the Underwriting Agreement, except as set forth herein. Any reference to the Underwriting Agreement
in the Underwriting Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith
shall hereinafter mean the Underwriting Agreement, as amended, modified or replaced by this Agreement (or as the Underwriting Agreement
may be further amended, modified or supplemented after the date hereof in accordance with the terms thereof, which shall require the consent
of each of the parties hereto). |
[Signature Page Follows]
IN WITNESS WHEREOF, each of the undersigned has
caused this Agreement to be executed and delivered by its duly authorized signatory as of the date first set forth above.
| |
CANTOR FITZGERALD & CO. |
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By: |
/s/ Sage Kelly |
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Name: |
Sage Kelly |
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Title: |
Global Head of Investment Banking |
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INFLECTION POINT ACQUISITION CORP. II |
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By: |
/s/ Michael Blitzer |
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Name: |
Michael Blitzer |
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Title: |
CEO |
| Acknowledged and agreed to: |
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| USA RARE EARTH, LLC |
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| By: |
/s/ David Kronenfeld |
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| Name: |
David Kronenfeld |
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| Title: |
Chief Legal Officer |
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[Signature page to Fee
Reduction Agreement]
Exhibit 99.1
USA RARE EARTH, A
DOMESTIC RARE EARTH MINING & MAGNET COMPANY, TO
BECOME A PUBLICLY TRADED COMPANY VIA BUSINESS COMBINATION
WITH
INFLECTION POINT ACQUISITION CORP. II
| ● | USA Rare Earth, LLC (“USARE” or the “Company”)
is building a vertically integrated US rare earth magnet supply chain, positioning itself as an early mover and a significant ex-China
producer of the future. |
| ● | The Company is targeting a large and growing total addressable
market (TAM) estimated to be $41.1 billion by 2035, driven by growing demand for rare earth magnets across core commercial and defense
industries. |
| ● | USARE controls mining rights to a world-class heavy rare
earth deposit in West Texas; when mining begins, the deposit will play a key role in supplying and scaling the Company’s magnet
production facility being developed in Stillwater, Oklahoma. |
| ● | Scalable, vertically integrated roadmap with plans for combined
annualized magnet production capacity of 1,200 tpa by 2025, expanding to ~4,800 tpa by 2028. |
| ● | The proposed transaction values USARE at a pro-forma enterprise
value of $870 million. |
| ● | Transaction includes an initial ~$35 million PIPE investment,
of which $25 million will fund in connection with the signing of the Business Combination Agreement. |
NEW YORK – August 22, 2024 – USA Rare Earth, LLC,
a company building out a vertically integrated, domestic rare earth element (“REE”) magnet production supply chain that would
include REE, critical minerals and lithium mining and processing, and Inflection Point Acquisition Corp. II (Nasdaq: IPXX) (“IPXX”),
a special purpose acquisition company, today announced that they have entered into a definitive business combination agreement (the “Business
Combination Agreement” and the transactions contemplated by that agreement, the “Proposed Business Combination”), which
will result in USARE becoming a publicly traded company.
USARE is developing a vertically integrated US REE magnet supply chain,
with an early-mover advantage to become a significant ex-China producer. Founded in 2019, the Company has permanent magnet production
equipment on site at its Stillwater, Oklahoma location. Phase 1 of the magnet facility is expected to be operational at the end of 2025
and will have a production capacity of up to 1,200 tpa, initially supplied by third party feedstock.
The Company has plans to expand production capacity by an additional
three phases for total production capacity of approximately 4,800 tpa by 2028. USARE intends to supply and scale the future of the Company’s
magnet production from its control of the mining rights to the Round Top Mountain deposit in West Texas (“Round Top”) through
its subsidiary.
Round Top is an above-ground mineral deposit containing at least 15
of the 17 rare earth elements, plus lithium and other industrial minerals. The Company has successfully piloted proprietary rare earth
separation technology, and, once mining at Round Top begins, plans to deploy that technology as part of a closed-loop process for the
separation of rare earth minerals.
With an early mover advantage and diversified mix of target customers,
USARE has a unique opportunity to become a leading domestic supplier of REE magnets and heavy REEs required for electric vehicles, green
energy, and defense industries, as well as a strategic national asset for critical US industries to advance domestic growth and supply
sustainability.
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Tready Smith, USARE’s Board Chair, commented: “Today’s
business combination agreement represents a significant step in the growth of USARE. It enables us to capitalize on our unique opportunity
to become the leading domestic supplier of rare earth materials for critical US industries. Our team has a proven track record in both
mining and magnet manufacturing, which we believe positions us exceptionally well to further build the team, bring our magnet production
facility online and begin extraction from the Round Top deposit. This will allow us to take advantage of the significant domestic demand
for high performance, rare earth magnets that currently exists.
The combination with IPXX provides us with a partner that shares our
vision for the future and secures our ability to continue executing our business plan. We are enthusiastic about the prefunding of our
PIPE investment and believe this investment allows us to drive the development of our permanent magnet facility toward production. We
are excited to collaborate with the IPXX team and believe we are well-positioned to unlock new opportunities and significant value for
our shareholders.”
Michael Blitzer, CEO of IPXX, added: “We are pleased to
announce our business combination with USA Rare Earth. USARE’s strategic vision, experienced team and integrated supply chain are
approaching scale at an inflection point for the critically important domestic industry. We believe that by becoming the first large scale
integrated magnet producer in North America, the Company is poised to be a strategic national asset that mines rare earth material for
integrated magnet production serving the technological, industrial, and defense end markets.”
Proposed Business Combination Overview
The Proposed Business Combination implies a pro forma combined enterprise
value of $870 million, excluding additional earnout consideration. This assumes an $800 million pre-money valuation of USARE, 100% rollover
of USARE equity and excludes any amounts in the IPXX trust account.
Existing USARE investors and investors affiliated with IPXX have agreed
to a prefunded PIPE investment of ~$25 million upon the signing of the Business Combination Agreement, and we are seeking to upsize this
PIPE with additional funding in connection to closing, with $9 million already committed.
USARE expects to use the net proceeds from the Proposed Business Combination
for general corporate purposes, including progressing the development of its Stillwater magnet facility.
Under the terms of the Business Combination Agreement, USARE’s
existing equityholders will convert 100% of their equity ownership stakes into the combined company and are expected to own approximately
84% (excluding the affiliates of IPXX) of the post-combination company upon consummation of the Proposed Business Combination, excluding
any IPXX investors who do not choose to redeem their shares.
The Proposed Business Combination is expected to be completed in early
2025, subject to customary closing conditions, including regulatory and stock approvals. The combined public company is expected to be
named “USA Rare Earth, Inc.” and to list its common stock and warrants to purchase common stock on Nasdaq, subject to satisfaction
of Nasdaq’s listing requirements. The Proposed Business Combination has been unanimously approved by the managers of USARE and the
board of directors of IPXX.
Additional information about the Proposed Business Combination, including
a copy of the Business Combination Agreement, will be provided in a Current Report on Form 8-K to be filed by IPXX with the US Securities
and Exchange Commission (the “SEC”) and available at www.sec.gov.
Advisors
Cohen & Company Capital
Markets, a division of J.V.B. Financial Group, LLC, is the exclusive financial advisor, lead capital markets advisor and private
placement agent to USARE. White & Case LLP is serving as legal counsel to IPXX, and King & Spalding LLP is serving as legal counsel
to USARE. Gateway Group is serving as investor relations and media relations advisor for the transaction.
About USA Rare Earth, LLC
USA Rare Earth, LLC (“USARE”) is
a company building a vertically integrated, domestic rare earth element magnet production supply chain. USARE is building out a magnet
production facility in Stillwater, Oklahoma and controls mining rights to the Round Top heavy rare earth and critical minerals deposit
in West Texas. USARE is poised to become a leading domestic supplier of rare earth magnets and heavy rare earth elements needed in the
electric vehicle, green energy, consumer electronics, and defense industries, as well as for chipsets, semiconductors, and 5G.
For more information about USA Rare Earth, LLC, visit usare.com.
About Inflection Point Acquisition Corp. II
Inflection Point Acquisition Corp. II (“Inflection Point”)
is a special purpose acquisition company whose business purpose is to effect a merger, share exchange, asset acquisition, share purchase,
reorganization or similar business combination with one or more businesses or entities. Inflection Point aims to identify, partner with
and help grow North American and European businesses in disruptive growth sectors, which complements the expertise of its management team.
Cautionary Note Regarding Forward-Looking Statements
This press release includes “forward-looking statements”
within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995.
These forward-looking statements include, without limitation, statements regarding or similar to: estimates and forecasts of financial
and operational metrics; plans, goals, ambitions, targets, future business and operations, and projections regarding future mining capabilities,
operations, reserves, manufacturing capacity and plant performance; projections of market opportunity and market share; estimates and
projections of adjacent industry sector opportunities; USARE’s commercialization costs and timeline; USARE’s ability to timely
and effectively meet construction and mining timelines and scale its production and manufacturing processes; USARE’s ability to
maintain, protect, and enhance its intellectual property; development of favorable regulations and government demand, contracts, and incentives
affecting the markets in which USARE operates; USARE’s ability to receive and/or maintain the necessary permits and other government
approvals necessary to operate its business; any estimates with respect to the rare earth and critical element and mineral deposits in
the Round Top deposit; IPXX’s and USARE’s expectations with respect to future performance of USARE’s (and, after the
Proposed Business Combination, the combined company’s) business; the expected funding of the PIPE investment and pre-funded investment,
to the extent they remain unfunded; anticipated financial impacts of the Proposed Business Combination; IPXX’s ability to obtain
an extension of its deadline to complete an initial business combination; the satisfaction of the closing conditions to the Proposed Business
Combination; and the timing of the completion of the Business Combination. For example, projections of future enterprise value, revenue,
market share, and other metrics are forward-looking statements. In some cases, you can identify forward-looking statements by terminology
such as “anticipate,” “believe,” “continue” “estimate,” “expect,” “intend,”
“may,” “potential,” “predict,” “should,” or “will,” or, or the negatives of
these terms or variations of them or similar terminology, although not all forward-looking statements contain such identifying words.
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These forward-looking statements are based upon estimates and assumptions
that, while considered reasonable by IPXX, USARE and their respective managements, as the case may be, are inherently uncertain. These
forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by
any investor as, a guarantee, an assurance, a prediction, or a definitive statement of fact or probability. Actual events and circumstances
are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of
IPXX and USARE. Such forward-looking statements are subject to risks, uncertainties, and other factors which could cause actual results
to differ materially from those expressed or implied by such forward-looking statements. Factors that may cause actual results to differ
materially from current expectations include, but are not limited to: (1) changes in domestic and foreign business, market, financial,
political conditions, and in applicable laws and regulations, (2) the occurrence of any event, change or other circumstances that could
give rise to the termination of definitive agreements and any negotiations with respect to the Proposed Business Combination; (3) the
outcome of any legal proceedings that may be instituted against IPXX, USARE, the combined company, or others; (4) the inability to complete
the Proposed Business Combination due to the failure to obtain approval of the stockholders of IPXX to extend the deadline for IPXX to
complete an initial business combination, for the Proposed Business Combination or to satisfy other conditions to closing; (5) changes
to the proposed structure of the Proposed Business Combination that may be required or appropriate as a result of applicable laws or regulations;
(6) the ability to meet stock exchange listing standards following the consummation of the Proposed Business Combination; (7) the risk
that the Proposed Business Combination disrupts current plans and operations of IPXX or USARE as a result of the announcement and consummation
of the Proposed Business Combination; (8) the ability to recognize the anticipated benefits of the Proposed Business Combination, which
may be affected by, among other things: competition, the ability of the combined company to grow and manage growth profitably, the ability
of the combined company to build or maintain relationships with customers and suppliers and retain its management and key employees, the
supply and demand for rare earth minerals, the timing and amount of future production, costs of production, capital expenditures and requirements
for additional capital, timing of future cash flow provided by operating activities, if any, uncertainty in any mineral resource estimates,
uncertainty in any geological, metallurgical, and geotechnical studies and opinions, and transportation risks; (9) costs related to the
Proposed Business Combination; (10) the possibility that USARE or the combined company may be adversely affected by other economic, business,
and/or competitive factors; (11) estimates of expenses and profitability and underlying assumptions with respect to stockholder redemptions
and purchase price and other adjustments; and (12) other risks and uncertainties set forth in Appendix A of the Investor Presentation
filed by IPXX with the SEC, the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements”
in IPXX’s final prospectus relating to its initial public offering dated May 24, 2023, and in subsequent IPXX filings with the U.S.
Securities and Exchange Commission (the “SEC”), including the Registration Statement (as defined below) relating
to the Proposed Business Combination expected to be filed by IPXX, and periodic Exchange Act reports filed with the SEC such as its Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K.
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The recipient of this press release should carefully consider the foregoing
risk factors and the other risks and uncertainties which will be more fully described in the “Risk Factors” section of the
Registration Statement discussed below and other documents filed by IPXX from time to time with the SEC. If any of these risks materialize
or USARE’s assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking
statements. There may be additional risks that neither IPXX nor USARE presently know or that they currently believe are immaterial that
could also cause actual results to differ from contained in the forward-looking statements. In addition, forward-looking statements reflect
IPXX and USARE’s expectations, plans, or forecasts of future events and views as of the date of this press release. Nothing in this
communication should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved
or that any of the contemplated results of such forward-looking statements will be achieved. These forward-looking statements speak only
as of the date of this press release. IPXX, USARE, and their respective representatives and affiliates specifically disclaim any obligation
to, and do not intend to, update or revise these forward-looking statements, whether as a result of new information, future events, or
otherwise. Accordingly, these forward-looking statements should not be relied upon as representing IPXX’s, USARE’s, or any
of their respective representatives or affiliates’ assessments as of any date subsequent to the date of this press release, and
therefore undue reliance should not be placed upon the forward-looking statements. This press release contains preliminary information
only, is subject to change at any time, and is not, and should not be assumed to be, complete or constitute all of the information necessary
to adequately make an informed decision regarding any potential investment in connection with the Proposed Business Combination.
Participants in the Solicitation
IPXX and its directors and executive officers may be deemed participants
in the solicitation of proxies from IPXX’s stockholders with respect to the Proposed Business Combination. A list of the names of
those directors and executive officers and a description of their interests in IPXX is contained in the sections entitled “Security
Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters” and “Directors, Executive Officers
and Corporate Governance — Conflicts of Interest” of IPXX’s Annual Report on Form 10-K for the fiscal year ended December
31, 2023, filed with the SEC on April 2, 2024, and which is available free of charge at the SEC’s website at www.sec.gov and at
the following URL: sec.gov/Archives/edgar/data/1970622/000121390024029041/ea0202401-10k_infle2.htm. Additional information regarding the
interests of such participants will be contained in the Registration Statement when available.
USARE’s directors and executive officers may also be deemed to
be participants in the solicitation of proxies from the stockholders of IPXX in connection with the Proposed Business Combination. A list
of the names of such directors and executive officers and information regarding their interests in the Proposed Business Combination will
be included in the Registration Statement when available.
No Offer or Solicitation
This press release does not constitute (i) a solicitation of a proxy,
consent, or authorization with respect to any securities or in respect of the Proposed Business Combination, or (ii) an offer to sell,
a solicitation of an offer to buy, or a recommendation to purchase any security of IPXX, USARE, or any of their respective affiliates.
No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of
1933, as amended, or an exemption therefrom, nor shall any sale of securities in any states or jurisdictions in which such offer, solicitation,
or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction be effected. No securities
commission or securities regulatory authority in the United States or any other jurisdiction has in any way passed upon the merits of
the Proposed Business Combination or the accuracy or adequacy of this presentation.
Additional Information and Where to Find It
The Proposed Business Combination will be submitted
to the shareholders of IPXX for their consideration. IPXX intends to file a registration statement on Form S-4 (the “Registration
Statement”) with the SEC, which will include a proxy statement/prospectus and certain other related documents, which will serve
as both the proxy statement to be distributed to IPXX’s shareholders in connection with IPXX’s solicitation for proxies for
the vote by IPXX’s shareholders in connection with the Proposed Business Combination and other matters to be described in the Registration
Statement, as well as the prospectus relating to the offer and sale of the securities to be issued (or deemed issued) to IPXX’s
securityholders and USARE’s equityholders in connection with the completion of the Proposed Business Combination. After the Registration
Statement is declared effective, IPXX will mail a definitive proxy statement and other relevant documents to its shareholders as of the
record date established for voting on the Proposed Business Combination. IPXX’s shareholders and other interested persons are advised
to read, once available, the Registration Statement, the preliminary proxy statement/prospectus included in the Registration Statement
and any amendments thereto and, once available, the definitive proxy statement/prospectus and documents incorporated by reference therein
filed in connection with the Proposed Business Combination, in connection with IPXX’s solicitation of proxies for its extraordinary
general meeting to be held to approve, among other things, the Proposed Business Combination, as well as other documents filed with the
SEC in connection with the Proposed Business Combination, as these documents will contain important information about IPXX, USARE, and
the Proposed Business Combination. Securityholders of IPXX and equityholders of USARE may obtain a copy of the preliminary or definitive
proxy statement/prospectus, once available, as well as other documents filed by IPXX with the SEC that will or may be incorporated by
reference in the proxy statement/prospectus, without charge, at the SEC’s website located at www.sec.gov or by directing a written
request to IPXX at Inflection Point Acquisition Corp. II, 167 Madison Avenue Suite 205 #1017 New York, New York 10016.
The contents of IPXX’s and USARE’s website are not incorporarted
into this press release.
Investor Relations Contact:
Gateway Group
Cody Slach, Georg Venturatos
949-574-3860
USARE@Gateway-grp.com
Media Relations Contact:
Gateway Group
Zach Kadletz
949-574-3860
USARE@Gateway-grp.com
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Exhibit 99.2
1 Well Positioned to Execute on Its Strategic Roadmap USARE has an early mover advantage to become the first vertically integrated ex - China rare earth supply chain Production Lines in Roadmap 4 Combined Annualized Capacity in Tons P lanned by 2028 ~4,800 Oxide Purity from Pilot Plant Test Results 98% - 99% from Funding until Prototype Facility is Completed Estimated 6 M onths With Local and State Governments Good Government Relations Work Complete with IP Plan in Place Freedom to Operate
2 STRICTLY PRIVATE AND CONFIDENTIAL About This Presentation This presentation and any accompanying materials (together with any oral statements made in connection herewith, this “Presen tat ion”) is provided for informational purposes only and has been prepared to assist interested parties in making their own evaluation with respect to the proposed business combination (the “ Pro posed Business Combination”) between Inflection Point Acquisition Corp. II (“IPXX”) and USA Rare Earth, LLC (together with its direct and indirect subsidiaries, collectively, the “Company” or “USAR E”) . The information contained in this Presentation does not purport to be all - inclusive or necessarily contain all the information that a prospective investor may desire in investigating a prospective in ves tment in the securities of IPXX or USARE, and none of IPXX, USARE, or their respective representatives or affiliates makes any representation or warranty, express or implied, as to the accuracy, comple ten ess, or reliability of the information contained in this Presentation (and any other information, whether written or oral, that has been or may be provided to you). The information contained in this Prese nta tion is preliminary and is subject to update, completion, revision, verification, and amendment without notice, and such changes may be material. This Presentation is being provided to you on t he understanding that as a sophisticated investor, you will understand and accept its inherent limitations, will not rely on it in making any investment decision with respect to any securities that ma y b e issued, and will use it only for purpose of discussion with your advisors your preliminary interest in investing in IPXX or USARE in connection with the Proposed Business Combination. No statement contain ed herein should be considered binding on any party. This Presentation (and any other information, whether written or oral, that has been or may be provided to you) constitutes confidential inform ati on, is intended for the recipient hereof only, and is provided to you on the condition that you agree that you will hold it in strict confidence and not reproduce, disclose, forward, or distribute it in wh ole or in part without the prior written consent of IPXX and USARE. Completion of the Proposed Business Combination is subject to, among other matters, approval by IPXX’s stockholders and the satisfaction of the closing conditions of the business combination agreement. No assurances can be given that the Proposed Business Combination will be consummated on the terms or in the timeframe currently co ntemplated, if at all. No Offer or Solicitation This Presentation does not constitute ( i ) a solicitation of a proxy, consent, or authorization with respect to any securities or in respect of the Proposed Business Com bination, or (ii) an offer to sell, a solicitation of an offer to buy, or a recommendation to purchase any security of IPXX, USARE, or any of their respective affi lia tes. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended (the “Securities Act”), or an exemption ther efr om, nor shall any sale of securities in any states or jurisdictions in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any s uch jurisdiction be effected. You should not construe this Presentation as legal, tax, accounting or investment advice, or a recommendation. You should consult your own counsel, tax, and financial advisors as to leg al and relates matters concerning the matters described in this Presentation and, by accepting this Presentation, you confirm that you are not relying upon the information contained in this Pr esentation to make any decision, investment or otherwise. No securities commission or securities regulatory authority in the United States or any other jurisdiction has in any way passed upon the m eri ts of the Proposed Business Combination or the accuracy or adequacy of this presentation. By accepting this presentation, you acknowledge that you are ( i ) aware that the United States securities laws prohibit any person who has material, non - public information concerning a company from purchasing or selling securities of such company or from communication such information to any other person unde r c ircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities, and (ii) familiar with the Securities Exchange Act of 1934, as amended, and th e r ules and regulations promulgated thereunder (collectively, the “Exchange Act”), and that you will neither use, nor cause any third - party to use, this Presentation or any information contained in this Presenta tion in contravention of the Exchange Act, including, without limitation, Rule 10b - 5 thereunder. Cautionary Note Regarding Forward - Looking Statements This Presentation includes “forward - looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. These forward - looking statements include, without limitation, statements regarding or similar to: estimates and forecasts of financial and operatio nal metrics; plans, goals, ambitions, targets, future business and operations, and projections regarding future mining capabilities, operations, reserves, manufacturing capacity and plant performance; pro jec tions of market opportunity and market share; estimates and projections of adjacent industry sector opportunities; USARE’s commercialization costs and timeline; USARE’s ability to timely and effect ive ly meet construction and mining timelines and scale its production and manufacturing processes; USARE’s ability to maintain, protect, and enhance its intellectual property; development of favorabl e r egulations and government demand, contracts, and incentives affecting the markets in which USARE operates; USARE’s ability to receive and/or maintain the necessary permits and other government ap pro vals necessary to operate its business; any estimates with respect to the rare earth and critical element and mineral deposits in the Round Top Deposit; IPXX’s and USARE’s expectations with respe ct to future performance of USARE’s (and, after the Proposed Business Combination, the Combined Company’s) business; the expected funding of the PIPE investment and pre - funded investment, to the ext ent they remain unfunded; anticipated financial impacts of the Proposed Business Combination; IPXX’s ability to obtain an extension of its deadline to complete an initial business combinat ion ; the satisfaction of the closing conditions to the Proposed Business Combination; and the timing of the completion of the Proposed Business Combination. For example, projections of future enterp ris e value, revenue, market share, and other metrics are forward - looking statements. In some cases, you can identify forward - looking statements by terminology such as “anticipate,” “believe,” “continue ” “estimate,” “expect,” “intend,” “may,” “potential,” “predict,” “should,” or “will,” or, or the negatives of these terms or variations of them or similar terminology, although not all forward - looking st atements contain such identifying words. Disclaimer DRAFT
3 STRICTLY PRIVATE AND CONFIDENTIAL These forward - looking statements are based upon estimates and assumptions that, while considered reasonable by IPXX, USARE and t heir respective managements, as the case may be, are inherently uncertain. These forward - looking statements are provided for illustrative purposes only and are not intended to serve as, and mu st not be relied on by any investor as, a guarantee, an assurance, a prediction, or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to pre dict and will differ from assumptions. Many actual events and circumstances are beyond the control of IPXX and USARE. Such forward - looking statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed or implied by such forward - looking statements. Factors that may cause actual results to differ materially from current expectati ons include, but are not limited to: (1) changes in domestic and foreign business, market, financial, political conditions, and in applicable laws and regulations, (2) the occurrence of any event, c han ge or other circumstances that could give rise to the termination of definitive agreements and any negotiations with respect to the Proposed Business Combination; (3) the outcome of any legal proceedings t hat may be instituted against IPXX, USARE, the combined company, or others; (4) the inability to complete the Proposed Business Combination due to the failure to obtain approval of the stockhol der s of IPXX to extend the deadline for IPXX to complete an initial business combination, for the Proposed Business Combination or to satisfy other conditions to closing; (5) changes to the proposed str uct ure of the Proposed Business Combination that may be required or appropriate as a result of applicable laws or regulations; (6) the ability to meet stock exchange listing standards following th e consummation of the Proposed Business Combination; (7) the risk that the Proposed Business Combination disrupts current plans and operations of IPXX or USARE as a result of the announcement and cons umm ation of the Proposed Business Combination; (8) the ability to recognize the anticipated benefits of the Proposed Business Combination, which may be affected by, among other things: compet iti on, the ability of the Combined Company to grow and manage growth profitably, the ability of the Combined Company to build or maintain relationships with customers and suppliers and retain it s m anagement and key employees, the supply and demand for rare earth minerals, the timing and amount of future production, costs of production, capital expenditures and requirements for addition al capital, timing of future cash flow provided by operating activities, if any, uncertainty in any mineral resource estimates, uncertainty in any geological, metallurgical, and geotechnical studies and opi nio ns, and transportation risks; (9) costs related to the Proposed Business Combination; (10) the possibility that USARE or the Combined Company may be adversely affected by other economic, business, a nd/ or competitive factors; (11) estimates of expenses and profitability and underlying assumptions with respect to stockholder redemptions and purchase price and other adjustments; and (12) other r isk s and uncertainties set forth in Appendix A of this Presentation, the section entitled “Risk Factors” and “Cautionary Note Regarding Forward - Looking Statements” in IPXX’s final prospectus relating t o its initial public offering dated May 24, 2023, and in subsequent IPXX filings with the U.S. Securities and Exchange Commission (the “SEC”), including the Registration Statement (as defined below) re lating to the Proposed Business Combination expected to be filed by IPXX, and periodic Exchange Act reports filed with the SEC such as its Annual Reports on Form 10 - K, Quarterly Reports on Form 10 - Q, an d Current Reports on Form 8 - K. The recipient of this Presentation should carefully consider the foregoing risk factors and the other risks and uncertainties wh ich will be more fully described in the “Risk Factors” section of the Registration Statement discussed below and other documents filed by IPXX from time to time with the SEC. If any of these risk s m aterialize or USARE’s assumptions prove incorrect, actual results could differ materially from the results implied by these forward - looking statements. There may be additional risks that neither IPXX nor USARE presently know or that they currently believe are immaterial that could also cause actual results to differ from contained in the forward - looking statements. In addition, forward - looking stateme nts reflect IPXX and USARE’s expectations, plans, or forecasts of future events and views as of the date of this Presentation. Nothing in this communication should be regarded as a representation by an y person that the forward - looking statements set forth herein will be achieved or that any of the contemplated results of such forward - looking statements will be achieved. These forward - looking stat ements speak only as of the date of this Presentation. IPXX, USARE, and their respective representatives and affiliates specifically disclaim any obligation to, and do not intend to, update or revi se these forward - looking statements, whether as a result of new information, future events, or otherwise. Accordingly, these forward - looking statements should not be relied upon as representing IPXX’s, USA RE’s, or any of their respective representatives or affiliates’ assessments as of any date subsequent to the date of this Presentation, and therefore undue reliance should not be placed upon the forwar d - l ooking statements. This Presentation contains preliminary information only, is subject to change at any time, and is not, and should not be assumed to be, complete or constitute all of the inform ati on necessary to adequately make an informed decision regarding any potential investment in connection with the Proposed Business Combination. Additional Information About the Proposed Business Combination and Where to Find It The Proposed Business Combination will be submitted to the shareholders of IPXX for their consideration. IPXX intends to file a registration statement on Form S - 4 (the “Registration Statement”) with the SEC, which will include a proxy statement/prospectus and certain other related documents, which will serve as both the proxy sta tement to be distributed to IPXX’s shareholders in connection with IPXX’s solicitation for proxies for the vote by IPXX’s shareholders in connection with the Proposed Business Combination and other m att ers to be described in the Registration Statement, as well as the prospectus relating to the offer and sale of the securities to be issued (or deemed issued) to IPXX’s securityholders and USA RE’ s equityholders in connection with the completion of the Proposed Business Combination. After the Registration Statement is declared effective, IPXX will mail a definitive proxy statement and other re lev ant documents to its shareholders as of the record date established for voting on the Proposed Business Combination. IPXX’s shareholders and other interested persons are advised to read, once avail abl e, the Registration Statement, the preliminary proxy statement/prospectus included in the Registration Statement and any amendments thereto and, once available, the definitive pr oxy statement/prospectus and documents incorporated by reference therein filed in connection with the Proposed Business Combination, in connection with IPXX’s solicitation of proxies for its ex traordinary general meeting to be held to approve, among other things, the Proposed Business Combination, as well as other documents filed with the SEC in connection with the Proposed Business Combina tio n, as these documents will contain important information about IPXX, USARE, and the Proposed Business Combination. Securityholders of IPXX and equityholders of USARE may obtain a copy of the preliminary or definitive proxy statement/prospectus, once available, as well as other documents filed by IPXX with the SEC that will or may be incorporated by reference in the proxy statement/prosp ect us, without charge, at the SEC’s website located at www.sec.gov or by directing a written request to IPXX at Inflection Point Acquisition Corp. II, 167 Madison Avenue Suite 205 #1017 New York, Ne w Y ork 10016. Disclaimer (Cont’d) DRAFT
4 STRICTLY PRIVATE AND CONFIDENTIAL Participants in the Solicitation of Proxies IPXX and its directors and executive officers may be deemed participants in the solicitation of proxies from IPXX’s stockhold ers with respect to the Proposed Business Combination. A list of the names of those directors and executive officers and a description of their interests in IPXX is contained in the sections entitled “Se cur ity Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters” and “Directors, Executive Officers and Corporate Governance — Conflicts of Interest” of IPXX’s Annual Repor t on Form 10 - K for the fiscal year ended December 31, 2023, filed with the SEC on April 2, 2024, and which is available free of charge at the SEC’s website at www.sec.gov and at the following URL: se c.gov/Archives/ edgar /data/1970622/000121390024029041/ea0202401 - 10k_infle2.htm. Additional information regarding the interests of such participants will be contained in the Registration Sta tem ent when available. USARE’s directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockh old ers of IPXX in connection with the Proposed Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the Proposed Business Combina tio n will be included in the Registration Statement when available. Industry and Market Data This Presentation has been prepared by IPXX and USARE and includes market data and other statistical information from third - part y sources, including independent industry publications, government publications, and other published independent sources. Some data is also based on the estimates of IPXX and/or USARE, which a re derived from their respective review of internal sources as well as third - party sources including those described above. None of IPXX, USARE, or any of their respective representatives or affiliates has independently verified any third - party information and cannot guarantee its accuracy or completeness. Trademarks and Trade Names IPXX and USARE own or have rights to various trademarks, service marks, trade names, and copyrights that they use in connecti on with the operation of their respective businesses. This Presentation also contains trademarks, service marks, and/or trade names of third parties, which are the property of their respective owners. T he use or display of third parties’ trademarks, service marks, trade names, and/or products in this Presentation is not intended to, and does not, imply a relationship with IPXX or USARE, or an endorse men t or sponsorship by or of IPXX or USARE. Solely for convenience, the trademarks, service marks, and/or trade names referred to in this Presentation may appear without the ©, TM, or SM symbols, b ut such references are not intended to indicate, in anyway, that IPXX or USARE, or the applicable rights owner will not asset, to the fullest extent under applicable law, their rights or the right o f t he applicable licensor to these trademarks, service marks, and/or trade names. Certain Defined Terms For purposes of this Presentation, (1) the term “Combined Company” refers to the Company subsequent to the close of the Propo sed Business Combination; (2) the terms “our”, “we”, and similar terms refer to the Company prior to the close of the Proposed Business Combination and to the Combined Company subsequent to the cl ose of the Proposed Business Combination; (3) the term “Round Top Deposit” refers to the Round Top mineral deposit and adjacent areas in Sierra Blanca, Texas; and (4) the term “Round Top Proj ect ” refers to the Company’s operations at the Round Top Deposit. No Incorporation by Reference The information contained in the third - party citations referenced in this Presentation is not incorporated by reference into thi s Presentation. The contents of any website of IPXX or USARE are not incorporated herein by reference. Disclaimer (Cont’d) DRAFT
SECTION - STRICTLY PRIVATE AND CONFIDENTIAL 01 Business Overview & Highlights DRAFT
VISION To be the leading Western supplier of high value rare earth magnets and critical minerals MISSION Establish a US rare earth magnet supply chain that supports the future state of energy, mobility, and national security
STRICTLY PRIVATE AND CONFIDENTIAL 7 Investment Highlights - A Unique Value Creation Opportunity Create a Vertically Integrated US Permanent Magnet Supply Chain • Build a vertically integrated US rare earth magnet supply chain • Strategic national asset for critical US industries, pioneering domestic rare earth production to advance American growth and supply sustainability Early Mover Advantage • Early mover advantage to be one of the first vertically integrated ex - China rare earth supply chains • Established infrastructure, legal permits and good government relationships Large TAM With Geopolitical Tailwinds • Large ~$41.1B TAM by 2035E (1) expected to be sold to large, diversified and stable customer base • Magnet demand driving economic investment into US domestic production Proven Extraction Methods • Working to build a scalable platform utilizing time - tested technologies such as heap leach and Continuous Ion Exchange (CIX) • Successfully separated Yttrium, Ytterbium, Erbium and Neodymium oxide from Round Top material Diversified Mix of Target Customers • Diversified mix of target customers (automotive, electronics, and medical device makers) in non - cyclical end markets such as government & defense • Anticipated customer stickiness due to significant performance requirements and high switching costs Dynamic, Integrated, Scalable Solution • Building integrated supply chain for high performance metal & magnet manufacturing • 4 production lines in roadmap with ~4,800 combined annualized capacity in tons planned by 2028 DRAFT (1): Calculated by management from data provided by industry reports
STRICTLY PRIVATE AND CONFIDENTIAL 22% 36% 57% 43% 8% 13% 13% 9% 2023 2035 Conventional Vehicles Wind Turbines Commercial Hardware and Electronics E Mobility Magnet Demand Driven by Core, Non - Cyclical Commercial and Defense Sectors Large US 2025 Defense Budget Will Drive Demand for Applications That Require Rare Earth Elements (“REEs”) Large US 2025 Defense Budget Neodymium | Praseodymium | Samarium | Dysprosium | Terbium ~$61 Billion (2) ~$48 Billion (2) Investment in Lethal Air Forces Investment in Sea Power Including Fleet Ships Investment in Land Power and Munitions ~$43 Billion (2) Critical Defense Applications Utilize Large Amounts of Rare Earth Magnets ~9,200 lbs ~5,200 lbs ~900 lbs Magnet Usage Per Unit Produced (3) : F - 35 Jet Arleigh Burke Class Destroyer Virginia Class Submarine Specific Usage in Defense Products / Applications Lethal Air Forces Sea Power & Fleets Land Power & Munitions Control Systems Jamming Devices Jet Engines GPS and Sensors Storage Batteries Radio Frequency Circulators Tank Gun Sights Guidance Systems Guidance Systems TAM Growth Driven by Demand For NdFeB Rare Earth Magnets $41.1B Commercial Rare Earth Magnet Demand is Seeing Significant Growth… Projected Rare Earth Magnet TAM (1) $18.5B ~7.5% Combined CAGR Demand for rare earth magnets expected to increase steadily across stable end markets and non - cyclical sectors (1): Calculated by management from data provided by industry reports (2): U.S. Department of Defense, March 11, 2024, “Department of Defense Releases the President's Fiscal Year 2025 Defense Bud get ” (3): U.S. Department of Defense, March 11, 2024, “DOD Looks to Establish 'Mine - to - Magnet' Supply Chain for Rare Earth Materials” DRAFT 8
9 STRICTLY PRIVATE AND CONFIDENTIAL 0 20 40 60 80 USA Strong Demand Creates an Imperative to Expand Supply Chain Capabilities Existing Global Supply Chain Concentration in China (2) 90% of Global refined Rare Earth Minerals are controlled by China 92% Global downstream metal / magnet segment of value chain is controlled by China 89% Mining 90% Refining 92% Magnet Manufacturing Separation Key Statistics (2) China Rest of World Global Supply Chain Concentration for NdFeB Magnets DRAFT 58% 16% Existing supply chain concentration domiciled in China across sectors causing manufacturer vulnerability to China’s dominance of the global rare earth value chain Metric Tons of NdFeB Magnet per Year (thousands) Supply (ex - China) Demand (ex - China) Considerable projected demand growth outside of China requires significant ramp up of ex - China supply to meet the supply gap ~3x Growth in demand outside of China by 2030 4 ~70K Metric Tons of demand outside of China by 2030 NdFeB Magnet Supply vs Demand (ex - China) (1) 2030 2025 2020 (1): The Impermanence of Permanent Magnets, Paulson Institute, 2021; The Status of Chinese Permanent Magnet Industry and R&D Act ivities, AIP Publishing, 2017 (2): U.S. Department of Energy, February 24, 2022, “Rare Earth Permanent Magnets”
STRICTLY PRIVATE AND CONFIDENTIAL USARE Offers a Dynamic Solution to Solving Key Domestic Rare Earth Production Challenges US Domestic Supply Chain Is Supported by Government Grants “It is vital that the US recognizes the importance of establishing a strong domestic supply chain for rare earth magnets… By investing to restore capabilities within our borders, we secure critical resources, encourage innovation, create jobs, and — most importantly — increase the probability of avoiding a conflict with China.” Mike Pompeo, USA Rare Earth Strategic Advisor What Are the Challenges? USARE Solution US Government Tax Credit and Grants Available for Industry Building First Global Vertically Integrated Ex - Chinese Rare Earth Supply Chain Rare Earth Minerals and Supply Chain are Concentrated in China Today (1) Lack of Vertical Integration Makes It Vulnerable to Rare Earth Magnet Supply Constraints Vertical Integration Optimizes Margins, Enhances Efficiency, Minimizes Costs and Mitigates Technical Challenges Creating Scalable State of the Art Production Facility With Capability to Expand Production Increasing Costs and Technical Challenges with Each Stage of Rare Earth Magnet Production Efficient Separation Process Leveraging CIX Separation Powered via Independent Solar Station Rare Earth Mining and Processing Is Energy - Intensive and Environmentally Unfriendly Bipartisan Rare Earth Magnet Manufacturing Production Tax Credit Act (HR 2849) Congress Manufacturing and Energy Supply Chains (MESC) Notice of Intent to provide a Funding Opportunity Announcement (FOA) for Critical Minerals Department of Energy Unsolicited White Paper on Gallium separation using DPA Title III Office funds Department of Defense Inflation Reduction Act (IRA) Section § 45X Advanced Manufacturing Production Credit for Critical Mineral Production Department of Treasury DRAFT (1): U.S. Department of Energy, February 24, 2022, “Rare Earth Permanent Magnets” 10
STRICTLY PRIVATE AND CONFIDENTIAL USARE at a Glance Company Overview Production and Supply Chain Highlights • Founded in 2019 • USARE is expected to become one of the only vertically integrated miner, processer and producer of rare earth and critical minerals outside of China • Developing capability to mine and process lithium and at least 15 of 17 rare earth elements at the Round Top Deposit in Sierra Blanca, Texas ̶ Significantly enriched with a deposit focused on valuable heavy rare earths • Ramping up production and extraction in metal and magnet production facilities in Stillwater, OK and Round Top Deposit in Sierra Blanca, TX • Highly experienced technical team Production Capabilities Vertically Integrated Supply Chain Vertical Integration Integrated supply chain from mineral to magnet Long Term Potential Capacity to produce a wide variety of critical minerals with an estimated 1.27Mt of contained rare earth minerals Logistical Edge Magnet production facility located only 700 miles from mine site Scalable Platform Growing extractable value through value - added processing stages Efficient Mining Exposed deposit eliminates need for stripping or overburden removal CIX Separation Less capital - intensive and lower waste profile than solvent extraction Magnet Production Magnet production equipment is on - site and being installed, with planned sales beginning 2025 Robust Deposit Round Top consists of ~70% heavy rare earth composition which increases potential economic viability Highlights Metal & Magnet Production Stillwater, OK Rare Earth Deposit Sierra Blanca, TX DRAFT 11
STRICTLY PRIVATE AND CONFIDENTIAL USARE’s Vertically Integrated Magnet Manufacturing Capabilities Mineral Resource Rare Earth Separation Facility Magnet Production Facility Established Capabilities Established Capabilities Established Capabilities x Round Top Deposit is an above - ground deposit containing heavy REEs needed for NdFeB magnet production x Globally significant resource with ~1.27Mt of rare earth minerals and ~500kt of lithium x Robust mineralogy consists of rhyolite host rock with a high ratio of heavy REEs x USARE has developed a proprietary Continuous Ion Exchange (CIX) processing facility for rare earth and critical minerals x Patents applied for to cover piloted operating conditions x Successfully separated materials from Round Top Mountain materials at a pilot scale x Phase 1 production line with up to 1,200 tpa capacity x Building renovation on schedule with requisite equipment secured x Freedom to operate study completed showing clear path forward for GBD, magnet chemistry and production approach Rare Earth Elements + Lithium Present At Least 15 / 17 Continuous Ion Exchange (CIX) Processing Facility Proprietary Process for Separation of Minerals Fully - Enclosed Metal and Magnet Production Facility 310,000 Ft 2 Est. Equipment and Facility Value (2) ~$48 Million Acres of Rare Earth Mining and Processing Land (1) ~8,000 DRAFT (1): Represents combined acreage that is either owned, leased, or is subject to a purchase option in USARE’s favor (2): Represents historical cost of USARE's equipment and facilities, other than for certain magnet equipment, which is based on appraisal value as of November 2022 12
1 Well Positioned to Execute on Its Strategic Roadmap USARE has an early mover advantage to become the first vertically integrated ex - China rare earth supply chain Production Lines in Roadmap 4 Combined Annualized Capacity in Tons P lanned by 2028 ~4,800 Oxide Purity from Pilot Plant Test Results 98% - 99% from Funding until Prototype Facility is Completed Estimated 6 M onths With Local and State Governments Good Government Relations Work Complete with IP Plan in Place Freedom to Operate
STRICTLY PRIVATE AND CONFIDENTIAL Rare Earth Metal Deposit Mineral Extraction Mineral Processing Magnet Manufacturing Product / Sales Political Support USARE Stands Out as a Differentiated Asset in an Industry Dominated by MP Materials and USARE DRAFT USARE is well positioned to be the premier domestic producer of heavy rare earth minerals and high - performance magnets Leader in Light Rare Earth Mining and Processing Establishing a Differentiated US - Focused Supply Chain USARE’s Stage of Development Dominant light rare earth oxide (“REO”) miner consistently delivering highly valuable NdPr (1) Dominant heavy rare earth deposit with REEs including Dysprosium and Terbium which are critical for NdFeB magnet manufacturing Completed In Process In Process In Process In Negotiation Completed Produces about ~15% of global rare earth content consumed annually (2) Plan for sustainable hill - side mining and heap leaching strategy in final stages of planning Mineral refining process that incorporates solvent extraction processing CIX separation technology that is more environmentally friendly than solvent extraction technology that achieved pilot plant results of 98% - 99% oxide purity Magnet production outsourced to China with downstream expansion underway including a domestic facility in Texas being built Significant investments made into domestic production capabilities with a Prototype Integrative Facility (“PIF”) six months from completion post - funding and commercial - scale production thereafter Long - term sales agreements with key customers historically sold into the Chinese market via an offtake agreement to Shenghe Multi - year commercial agreements in discussion with customers across the auto, retail, semis, construction, medical, industrial and government industries in North America and the European Union US federal support for domestic rare earth metal production The deposit is located in Texas, a favorable mining jurisdiction , bolstering federal efforts to support domestic production Source: Public Company Filings (1): Neodymium and Praseodymium (2): MP Materials Company website 14
SECTION - STRICTLY PRIVATE AND CONFIDENTIAL 02 Transaction Overview DRAFT
16 STRICTLY PRIVATE AND CONFIDENTIAL Inflection Point Acquisition Corp. II (“IPXX”) Overview • IPXX is a special purpose acquisition company formed for the purpose of consummating a business combination transaction and currently has over $255M held in a trust account • The Proposed Business Combination would enable USARE equity holders to receive shares in a publicly listed US company and provide the Company with the opportunity to raise capital in the public equity markets going forward • IPXX consummated its IPO on May 30, 2023 and current unit & warrant details of U: [1/2W]; W: [1:1, 11.5] IPXX Overview Michael Blitzer Chief Executive Officer and Chairman of IPXX Mr. Blitzer has decades of sector experience and was the Co - CEO of Inflection Point Acquisition Corp. which merged with Intuitive Machines Founder and co - CIO of Kingstown Capital Management which Mr. Blitzer grew to a multi - billion asset manager Vast public markets experience including spin - offs, rights offerings, public offerings, and privatizations and mergers etc. Prior Experience Case Study: Intuitive Machines / IPAX – Significant Trading Volume Realized Post - Close • Gross proceeds of ~$85 million delivered by the Inflection Point Acquisition Corp. (“IPAX”) sponsor team through a combination of the SPAC equity trust rollover, PIPE capital, forward purchase agreements and warrant exercises • Intuitive Machines’ equity story and investment highlights generated strong institutional and retail interest in the lead up to the close of De - SPAC • IPAX’s engagement with Wall Street banks to provide capital markets advisory services enabled the distribution of the equity story and helped drive a positive trading outcome • Within ~1 month of closing, cumulative trading volume reached over 70M • Single day trading volume peaked at 17M in a single day (03/09/2023), driven by significant retail interest • IPAX was also led by Michael Blitzer as a co Chief Executive Officer, helping Intuitive Machines drive growth, optimize their capital structure, and fund acquisitions February 2023 ~$815M Business Combination With And PIPE Investment Decades of Sector Experience Track Record of Identifying and Catalyzing Growth DRAFT
17 STRICTLY PRIVATE AND CONFIDENTIAL Transaction Summary DRAFT (1): Assumes 100% USARE rollover of equity (2): Assumes 90% redemption by IPXX’s existing public shareholders (3): >$25 million of PIPE already committed by Inflection Point Asset Management and its affiliates. $75 million PIPE represe nts the target aggregate PIPE at closing (4): Includes original issue discount, legal and advisory fees relevant to the transaction Transaction Highlights Estimated Sources and Uses ($M) Uses Sources $800 Equity to USARE $800 USARE Rollover Equity (1) $80 Cash to Balance Sheet $25 SPAC Trust (2) $20 Est. Transaction Expenses (4) $75 PIPE (3) $900 Total Uses $900 Total Sources Pro Forma Ownership $10.00 Share price at merger ($) 95.0 PF Shares outstanding (M) (2) $950.0 PF Equity Value ($M) ($80.0) ( - ) PF Cash on Balance Sheet $870.0 PF Enterprise Value Pro Forma Valuation ($M) Pro Forma Ownership % Own 84.2% USARE Rollover Equity 6.6% Sponsor 6.6% PIPE Shareholders 2.6% IPXX Shareholders 84.2% 6.6% 6.6% 2.6% ▪ Business combination between USARE and IPXX ▪ Pro forma enterprise valuation of ~$870.0M ▪ USARE’s shareholders will roll 100% of their existing equity holdings into the Combined Company ▪ The Combined Company has secured >$25M of committed PIPE capital funding at announcement from affiliates of Inflection Point Holdings II LLC (the “Sponsor”) and existing investors, with indications for additional committed capital from affiliates of the Sponsor to fund at a later date ▪ SPAC trust and PIPE proceeds provide USARE with significant dry powder, net of transaction expenses, to invest in its operational business plan
SECTION - STRICTLY PRIVATE AND CONFIDENTIAL A Appendix DRAFT
19 STRICTLY PRIVATE AND CONFIDENTIAL The risks presented below are non - exhaustive descriptions of certain of the general risks related to the business of USARE, IPXX , the Combined Company, and the Proposed Business Combination, and such list is not exhaustive. The list below has been prepared solely for purposes of inclusion in this Presentation and not f or any other purpose. You should carefully consider these risks and uncertainties and should carry out your own diligence and consult with your own financial and legal advisors concerning the risks presented by the Proposed Business Combination. Risks relating to the business of USARE and IPXX, the Proposed Business Combination, and the business of the Combined Company will be disclosed in future docum ent s filed or furnished by IPXX or the Combined Company with the SEC, including the documents filed or furnished in connection with the Proposed Business Combination. The risks presented in such fil ings will be consistent with SEC filings typically relating to a public company, including with respect to the business and securities of IPXX, USARE, and the Combined Company, and the Proposed Bus ine ss Combination, and may differ significantly from, and be more extensive than, those presented below. Risks Relating to Our Business and Industry • The Round Top Project is at the development stage, and we have not commenced construction or commissioning of the mine. Our S t illwater magnet facility is under development (“Stillwater Facility”) and is not yet completed (together with the Round Top Project, our “Projects”). • We have not commenced commercially mining and selling critical minerals, rare earth minerals, or lithium, and the Company has no history in operating a minerals mine or process. The lack of commercial operations limits the accuracy of any forward - looking forecasts, prospects or business outlook. • We may not be able to generate positive cashflow from our expected future business operations. Our long - term success will depe nd on implementing our business strategy and operational plan, as well as our ability to generate revenues, achieve and maintain profitability and develop positive cash flows from our mining, re fining, and/or production activities. • We may experience time delays, unforeseen expenses, increased capital costs, and other complications while developing the Pro j ects, these could delay the start of revenue - generating activities and increase development costs. • The development of the Round Top Project into a mine may not occur or result in the commercial extraction of mineral deposits . Even if an economic mineral deposit is mined, we may not realize profits from our development activities in the short, medium, or long term. • The economic viability of our Round Top Project and its development remains subject to various risks, including the delivery o f a preliminary feasibility study. • The preliminary and definitive feasibility studies, when delivered, may not support the economic viability of the Round Top P r oject moving forward, and the assumptions used in the studies to underpin the viability of the Round Top Project (including, but not limited to, the prices of critical minerals, rare earth m ine rals or lithium) may not remain accurate in the future. • Until our Round Top Project is capable of satisfying our feedstock needs, our business is subject to the availability of REE o xide and metal feedstock, in quantities and prices that allow the Company to develop and commercially operate its Stillwater Facility. • We may be adversely affected by fluctuations in demand for, and prices of, critical and rare earth minerals and lithium and p r oducts, alloy flake, and magnets and magnet materials. • The success of our business will depend, in part, on the growth of existing and emerging uses for critical and rare earth min e rals and lithium and related products and magnets. • Our ability to generate revenue will be diminished if we are unable to compete with substitutions for critical and rare earth minerals and lithium. • An increase in the global supply of critical and rare earth minerals and lithium related products, dumping, predatory pricing and other tactics by our competitors or state actors may adversely affect our profitability. • We operate in a highly competitive industry in a high demand and growth environment and additional mining, refining and manuf a cturing competitors could result in a reduction in revenue. • We may become dependent on key suppliers, including for feedstock, or customers, including for off - take. • Changes in China’s or the United States’ political environment and policies, including changes in export/import policy may ad v ersely affect our business. Risk Factors DRAFT
20 STRICTLY PRIVATE AND CONFIDENTIAL • The production of critical and rare earth minerals and lithium products is a capital - intensive business that requires the comm itment of substantial resources; if we do not have sufficient capital or resources to provide for such production, it could negatively impact our business. • Our continued growth depends on our ability to reach anticipated production rates for the separation of REEs as part of the R o und Top Project, our only currently controlled critical and rare earth minerals and lithium deposit. • Our continued growth depends on our ability to obtain commercial deployment of the Company’s mineral processing and purificat i on technology and its ability to efficiently process and purify one or more feedstocks of mixed rare earth mineral concentrates. • The production of magnet materials is dependent upon our ability to complete the buildout of our Stillwater Facility and dela y s in the completion of the Stillwater Facility could have a negative impact on our ability to produce magnets. • The amount of capital required for the Projects may increase materially from our current estimates, and we expect to need to r aise additional capital, which if delayed or not received could prolong or hinder completion of the Projects. • Our success largely depends on the market price of critical and rare earth minerals and lithium and the magnets we intend to p roduce remaining higher than our costs of any future production (assuming successful exploration and development of the Round Top Project). • We expect to raise further funds through equity or debt financing, joint ventures, production sharing arrangements or other m e ans. Consequently, we depend on our ability to successfully access the capital and financial markets. Any inability to access the capital or financial markets may limit our ability to fund our on going operations, execute our business plan or pursue investments that we may rely on for future growth. • The holders of our preferred stock have certain approval rights over actions taken by the Company, including related to incur r ing debt. If we are unable to secure those approvals or do so in a timely manner, we may fail to access debt capital when otherwise necessary or advisable. • We may not be able to convert current commercial discussions and/or memorandums of understanding with customers for the sale o f our products into definitive contracts, which may have a negative effect on our business. • Any failure by management to manage growth properly could negatively impact our business. • A power or other utility disruption or shortage at our Projects could temporarily delay operations and increase costs, which m ay negatively impact our business. • Increasing costs, including rising electricity and other utility costs, or limited access to raw materials may adversely affe c t our profitability. • Fluctuations in transportation costs or disruptions in transportation services or damage or loss during transport could decre a se our competitiveness or impair our ability to supply critical and rare earth minerals and lithium and products to us or our customers. • We will need to produce our products to exacting specifications in order to provide future customers with a consistently high - quality product. An inability to meet individual customer specifications would negatively impact our business. • Diminished access to water may adversely affect our operations. • When compared to many industrial and commercial operations, mining exploration and development projects are high risk and sub j ect to uncertainties. Each mineral resource is unique and the nature of the mineralization, and the occurrence and grade of the minerals, as well as its behavior during mining, is unpredi cta ble. Any mineral resource estimates may be materially different from mineral quantities we may recover, any life - of - mine estimates may prove inaccurate and market price fluctuations and changes in operating and capital costs may render mineral resources uneconomic to mine. Uncertainty and/or error in our estimates of minerals in the Round Top deposit could result in lower - than - ex pected revenues and higher - than - expected costs. • Work stoppages or similar difficulties, breakdown in labor relations, or a shortage of skilled technicians and engineers coul d significantly disrupt our operations and reduce our revenues. Risk Factors (Cont’d) DRAFT
21 STRICTLY PRIVATE AND CONFIDENTIAL • We depend on key personnel for the success of our business. If we fail to retain our key personnel or if we fail to attract a d ditional qualified personnel, we may not be able to achieve our desired level of growth and our business could suffer. • Because of the dangers involved in the mining of minerals and the manufacture of our products, there is a risk that we may in c ur liability or damages as we conduct our business. • We are subject to certain agreements with government entities that contain conditions and obligations, including local invest m ent, job creation, and repayment terms, that, if not complied with, could negatively impact our business. • Our business may be adversely affected by force majeure events outside our control, including labor unrest, civil disorder, w a r, subversive activities or sabotage, extreme weather conditions, fires, floods, tornados, explosions or other catastrophes, epidemics or quarantine restrictions. • Our success depends on developing and maintaining relationships with local communities and stakeholders. • Land reclamation and mine closure may be burdensome and costly. • Since its inception, the Company has generated negative operating cash flows and we may experience negative cash flow from op e rations in the future. Our consolidated financial statements have been prepared on a going concern basis. • Our mining rights are held by one of our subsidiaries, which is owned approximately 81% by the Company and approximately 19% a minority member. If the minority member does not meet its capital contribution requirements, then the Company would need to raise additional funds the minority member’s shortfall in c onn ection with the Round Top Project. Further, our interests may not align at all times with such minority member and divergence of interests may negatively impact our business. Risks Related to Legal, Compliance, and Regulations • Our operations are subject to extensive and costly environmental requirements; and current and future laws, regulations and p e rmits impose significant costs, liabilities or obligations or could limit or prevent our ability to continue our current operations or to undertake new operations. • We will be required to obtain and sustain governmental permits and approvals to develop and operate the Projects, a process w h ich is often costly and time - consuming. Failure to obtain or retain any necessary permits or approvals for our planned operations may negatively impact our business. • Our failure to comply with applicable anti - corruption, anti - bribery, anti - money laundering and similar laws and regulations co uld negatively impact our reputation and results of operations. • Our operations are subject to environmental, health and safety regulations, which could impose additional costs and complianc e requirements, and we may face claims and liability for breaches, or alleged breaches, of such regulations and other applicable laws. • The impacts of climate change may adversely affect our operations and/or result in increased costs to comply with changes in r egulations. • We face opposition from organizations that oppose mining which may disrupt or delay our mining projects. • Our business could be adversely affected by trade tariffs or other trade barriers. • We are exposed to possible litigation risks, including mining permit disputes (including in respect of access and/or validity of tenure), environmental claims, occupational health and safety claims and employee claims. Further, we may be involved in disputes with other parties in the future that may result in litigation. Cur rent or future litigation or administrative proceedings could have a negative impact on our business. • If we receive federal monies, we could become subject to additional federal regulations. This could delay timing and increase costs. Risk Factors (Cont’d) DRAFT
22 STRICTLY PRIVATE AND CONFIDENTIAL Risks Related to Intellectual Property and Technology • If we infringe, or are accused of infringing, the intellectual property rights of third parties, it may increase our costs or prevent us from being able to commercialize new products. • We may not be able to adequately protect our intellectual property rights. If we fail to adequately enforce or defend our int e llectual property rights, our business may be harmed. • We are dependent upon information technology systems, which are subject to cyber threats, disruption, damage and failure. Any unauthorized access to, disclosure, or theft of personal information we gather, store, or use could harm our reputation and subject us to claims or litigation. Further, a failure of our informat ion technology and data security infrastructure could adversely affect our business and operations. Risks Related to Future Performance and Resource Estimates • Actual capital costs, operating costs, production and economic returns may differ significantly from those we have anticipate d and future development activities may not result in profitable mining, processing or production operations. • Mining projects such as ours have no operating history on which to base estimates of future operating costs and capital requi r ements. Before operations commence, any projections we may produce are based upon estimates and assumptions made at the time they were prepared. If these estimates or assumptions prove to be incorrect or inaccurate, our actual operating results may differ materially from any forecasted results. • Our resource estimates may change significantly when new information or techniques become available. In addition, by their ve r y nature, resource estimates are imprecise and depend to some extent on interpretations, which may prove to be inaccurate. As further information becomes available through additional fiel dwo rk and analysis, our estimates, if any, are likely to change and these changes may result in a reduction in our resources. These changes may also result in alterations to our development and minin g p lans, which may, in turn, adversely affect our operations. Risks Related to IPXX and the Proposed Business Combination • IPXX may not be able to obtain the required shareholder approval to consummate the Proposed Business Combination. • IPXX’s sponsor, directors and officers have potential conflicts of interest in recommending that IPXX’s shareholders vote in f avor of the Proposed Business Combination. • The sponsor of IPXX has agreed to vote in favor of the Proposed Business Combination, which will increase the likelihood that IPXX will receive the requisite shareholder approval for the Proposed Business Combination and the transactions contemplated thereby regardless of how IPXX’s public shareholders vote. • The ability of IPXX’s public shareholders to exercise redemption rights with respect to a large number of public shares could deplete IPXX’s trust account prior to the Proposed Business Combination and thereby diminish the amount of working capital of the Combined Company. • Securities of companies formed through combinations with special purpose acquisition companies such as IPXX may experience a m aterial decline in price relative to the share price prior to such combinations. • IPXX’s sponsor, directors, executive officers, and affiliates of IPXX’s management team, may receive a positive return on the i r 6,250,000 founder shares, even if IPXX’s public shareholders experience a negative return on their investment after consummation of the Proposed Business Combination. Similarly, certain of IPXX’s d ire ctors and executive officers, and affiliates of IPXX’s management team, may experience a positive return on their investments in preferred equity and related securities of USARE and of the Co mbi ned Company, even if IPXX’s public shareholders experience a negative return on their investment after consummation of the Proposed Business Combination. • IPXX must seek shareholder approval to extend the date by which it must consummate a business combination past November 30, 2 0 24. If IPXX does not seek, or does not obtain such shareholder approval, the Proposed Business Combination will not be consummated, IPXX will cease all operations except for purposes of wi ndi ng up, dissolving and liquidating, in which case its public shareholders may only receive approximately $10.05 per share and its warrants will expire worthless. Further, third parties m ay bring claims against IPXX, and as a result, the proceeds held in the trust account could be reduced and the per share liquidation price received by shareholders could be less than $10.05 per sha re. Risk Factors (Cont’d) DRAFT
23 STRICTLY PRIVATE AND CONFIDENTIAL • IPXX cannot assure you that its due diligence review of USARE’s business has identified all material issues or risks associat e d with USARE, its business, or the industry in which it operates. Additional information may later arise in connection with the preparation of the registration statement and proxy materials or after con sum mation of the Proposed Business Combination. If IPXX’s due diligence investigation of USARE’s business was inadequate, then shareholders of the Combined Company following the Proposed Bus iness Combination could lose some or all of their investment. • USARE’s members and IPXX’s shareholders will experience significant dilution as a consequence of the Proposed Business Combin a tion and the related financings. • Because IPXX is incorporated under the laws of the Cayman Islands, in the event that the Proposed Business Combination is not completed, IPXX shareholders may face difficulties in protecting their interests and their ability to protect their rights through the U.S. federal courts may be limited. • IPXX may be a passive foreign investment company, which could result in adverse U.S. federal income tax consequences to U.S. i nvestors. • If IPXX is deemed to be an investment company under the Investment Company Act of 1940, as amended, it may be required to ins t itute burdensome compliance requirements and its activities may be restricted, which may make it difficult to complete the Proposed Business Combination or cause the parties to abandon thei r e fforts to complete the Proposed Business Combination. • IPXX is an emerging growth company subject to reduced disclosure requirements, and there is a risk that availing itself of su c h reduced disclosure requirements will make its shares less attractive to investors. Risks Related to the Combined Company’s Securities Following the Consummation of the Business Combination • USARE and IPXX will incur significant transaction costs in connection with the Proposed Business Combination, which may excee d current estimates and expectations, and those costs will be paid using the proceeds from the Proposed Business Combination and the related financings, diminishing the amount of working capit al of the Combined Company. • If, following the consummation of the Proposed Business Combination, securities or industry analysts do not publish or cease p ublishing research or reports about the Combined Company, its business, or its market, or if they change their recommendations regarding the Combined Company’s shares adversely, then the pri ce and trading volume of the Combined Company’s shares could decline. • An active trading market for the Combined Company’s common stock may not be available on a consistent basis to provide stockh o lders with adequate liquidity. The market price of the Combined Company’s shares could decline significantly and trading volume could decline significantly or become volatile following the con summation of the Proposed Business Combination. • Because there are no current plans for the Combined Company to pay cash dividends for the foreseeable future, shareholders ma y not receive any return on investment unless shares are sold for a price greater than that which was initially paid. • The ability of IPXX’s public shareholders to exercise redemption rights with respect to a large number of IPXX’s outstanding p ublic shares could increase the possibility that the Proposed Business Combination would limit the Combined Company’s working capital, liquidity, and public float following the consummation of the Pr oposed Business Combination. • Shareholders will experience immediate and substantial dilution as a consequence of the issuance of shares of common stock an d other equity securities of the Combined Company in the Proposed Business Combination and the financings related thereto. Additionally, future sales and issuances of the Combined Company’s c omm on stock or other equity securities, including pursuant to the Combined Company’s equity incentive plans (such as the Series A Preferred Stock and the Series A Preferred Investor Warrants) , c ould result in additional dilution of the percentage ownership of the Combined Company’s shareholders and cause the market price of the Combined Company’s common stock to decline even if the busi nes s is doing well. • If the Combined Company fails to establish and maintain effective internal controls, the Combined Company’s ability to produc e accurate and timely financial statements could be impaired, which could harm the Combined Company’s operating results, investors’ views of it, and, as a result, the value of its common stock. Fu rther, the Combined Company’s internal controls and procedures may not prevent or detect all errors or acts of fraud. • Changes to, or application of different, financial accounting standards (including PCAOB and GAAP standards) may result in ch a nges to the Combined Company’s results of operations, which changes could be material. • The Combined Company’s reported operating results may fluctuate significantly or may fall below the expectations of investors or securities analysts, each of which may cause the market price of its securities to fluctuate or decline. Risk Factors (Cont’d) DRAFT
24 STRICTLY PRIVATE AND CONFIDENTIAL • After the completion of the Proposed Business Combination, the Combined Company may be at an increased risk of securities cla s s action litigation. • The Combined Company may be unable to obtain additional financing to fund its operations or growth. • There can be no assurance that the Combined Company will be able to meet the initial listing standards of Nasdaq, or followin g the closing of the Proposed Business Combination, comply with the continued listing standards of Nasdaq. • The requirements of being a public company in the US, if the Proposed Business Combination is completed, may strain the Combi n ed Company’s resources and divert management’s attention, and the increases in legal, accounting and compliance expenses that will result from being a public company in the US may be grea ter than we anticipate. Risk Factors (Cont’d) DRAFT
Inflection Point Acquisi... (NASDAQ:IPXXU)
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Inflection Point Acquisi... (NASDAQ:IPXXU)
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