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 26, 2024
PowerUp
Acquisition Corp.
(Exact
Name of Registrant as Specified in Its Charter)
| Cayman
Islands |
|
001-41293 |
|
N/A |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
No.) |
|
(I.R.S.
Employer
Identification
No.) |
188
Grand Street Unit #195
New
York, NY 10013
(Address
of Principal Executive Offices)
(347)
313-8109
(Registrant’s
Telephone Number)
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 (see General Instruction A.2. below):
| ☒ |
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ☐ |
Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ☐ |
Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
| Units, each consisting
of one Class A ordinary share, par value $0.0001 per share, and one-half of one Redeemable Warrant |
|
PWUPU |
|
The Nasdaq Stock Market
LLC |
| Class A Ordinary Shares,
par value $0.0001 per share, included as part of the Units |
|
PWUP |
|
The Nasdaq Stock Market
LLC |
| Redeemable Warrants each
exercisable for one Class A Ordinary Share for $11.50 per share, included as part of the units |
|
PWUPW |
|
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
This
section describes the material provisions of the Business Combination Agreement (as defined below) but does not purport to describe all
of the terms thereof. The following summary and description of the Business Combination Agreement is not complete and is qualified in
its entirety by reference to the complete text of the Business Combination Agreement, a copy of which is attached hereto as Exhibit 2.1
and is incorporated herein by reference. Shareholders of PowerUp Acquisition Corp. and other interested parties are urged to read the
Business Combination Agreement in its entirety. Unless otherwise defined herein, the capitalized terms used below are defined in the
Business Combination Agreement.
The
Business Combination
On
August 26, 2024, PowerUp Acquisition Corp., a Cayman Islands exempted company (“PowerUp”), entered into an Agreement and
Plan of Merger by and among PowerUp, PowerUp Merger Sub II, Inc., a Delaware corporation and wholly owned subsidiary of PowerUp (“Merger
Sub”), SRIRAMA Associates, LLC, a Delaware limited liability company (the “Sponsor”), Stephen Quesenberry, in the capacity
as the representative from and after the Effective Time for the Aspire stockholders as of immediately prior to the Effective Time (the
“Seller Representative”), and Aspire Biopharma, Inc., a Puerto Rico corporation (“Aspire”) (as may be amended
and/or restated from time to time, the “Business Combination Agreement”). Pursuant to the Business Combination Agreement,
among other things, the parties will effect the merger of Merger Sub with and into Aspire (together with the other transactions contemplated
by the Business Combination Agreement, the “Business Combination”), with Aspire continuing as the surviving entity and a
wholly owned subsidiary of PowerUp.
Prior
to the Closing Date, and subject to the satisfaction or waiver of the closing conditions contained in the Business Combination Agreement,
PowerUp will migrate out of the Cayman Islands and domesticate (the “Domestication”) as a Delaware corporation in accordance
with Section 388 of the DGCL and Part XII of the Cayman Islands Companies Act.
Business
Combination Consideration
As
consideration for the Business Combination, at Closing, Aspire’s stockholders shall collectively be entitled to receive, in the
aggregate, a number of shares of duly authorized, validly issued, fully paid and nonassessable shares of the combined company’s
common stock (“New Aspire Common Stock”) with an aggregate value equal to (a) $316.8 million less (b) the amount by which
Aspire’s cash at Closing is less than the Minimum Cash Condition (but only in the event the Minimum Cash Condition is waived by
PowerUp), if any, less (c) Aspire’s Indebtedness at Closing.
Effect
of Business Combination on Aspire Securities
The
Business Combination Agreement sets forth how certain outstanding securities of Aspire will be treated, or effected at the Effective
Time and by virtue of the Business Combination, including with respect to dissenting shares (if any), outstanding warrants, and outstanding
shares of preferred stock (which are to be converted immediately prior to the Effective Time into common stock).
Representations
and Warranties
The
Business Combination Agreement contains a number of representations and warranties made by each of PowerUp and Aspire as of the date
of the Business Combination Agreement or other specified dates. Certain of the representations and warranties are qualified by materiality
or Material Adverse Effect (as defined in the Business Combination Agreement), as well as information provided in the disclosure schedules
to the Business Combination Agreement.
No
Survival
The
representations and warranties of the parties contained in the Business Combination Agreement terminate as of, and do not survive, the
Closing, and, following their expiration, there are no indemnification rights for another party’s breach thereof. The covenants
and agreements of the parties contained in the Business Combination Agreement do not survive the Closing, except those covenants and
agreements to be performed after the Closing, which covenants and agreements will survive until fully performed.
Covenants
of the Parties
Each
party agreed in the Business Combination Agreement to use its commercially reasonable efforts to consummate the Business Combination.
The Business Combination Agreement also contains certain customary covenants by each of the parties during the period between the signing
of the Business Combination Agreement and the earlier of the Closing or the termination of the Business Combination Agreement in accordance
with its terms (the “Interim Period”), including, among other things, those relating to: (i) the provision of access to their
properties, books and personnel; (ii) the operation of their respective businesses in the ordinary course of business; (iii) the provision
by Aspire to PowerUp of unaudited consolidated financial statements on a quarterly and annual basis; (iv) PowerUp’s public filings;
(v) no insider trading; (vi) notifications of certain breaches, consent requirements or other matters; (vii) the preparation and filing
of the Registration Statement; (viii) public announcements; and (ix) confidentiality. Each party also agreed during the Interim Period
not to solicit or enter into any inquiry, proposal or offer, or any indication of interest in making an offer or proposal for an alternative
competing transaction, to notify the other party as promptly as practicable in writing of the receipt of any inquiries, proposals or
offers, requests for information or requests relating to an alternative competing transaction or any requests for non-public information
relating to such transaction, and to keep the other party informed of the status of any such inquiries, proposals, offers or requests
for information. The Business Combination Agreement also contains certain customary post-Closing covenants including, among other things,
those relating to: (a) maintenance of books and records; (b) tax matters; and (c) indemnification of directors and officers and the purchase
of tail directors’ and officers’ liability insurance.
In
addition, Aspire agreed to obtain its required shareholder approvals in the manner required under its organizational documents and applicable
law for the execution, delivery and performance of the Business Combination Agreement and each of the ancillary documents to the Business
Combination Agreement to which Aspire is or is required to be a party or bound, and the consummation of the transactions contemplated
thereby.
In
the Business Combination Agreement the parties made customary covenants regarding the registration statement on Form S-4 to be filed
by PowerUp with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the
“Securities Act”).
PowerUp
will distribute a proxy statement to seek the consent of its shareholders to, among other things, (i) adopt and approve the Business
Combination Agreement and the Business Combination; (ii) approve the amended certificate of incorporation of PowerUp in connection with
the Business Combination; (iii) appoint members of PowerUp’s post-Closing board of directors; (iv) approve PowerUp’s post-Closing
equity incentive plan and any equity grants, to the extent required; (v) such other matters as PowerUp and Aspire shall hereafter mutually
determine to be necessary or appropriate in order to effect the Business Combination; and (vi) the adjournment of PowerUp’s shareholder
meeting, if necessary or desirable in the reasonable determination of PowerUp.
The
parties agreed that the post-Closing board of directors will consist of seven directors, comprised of (i) two directors designated prior
to the Closing by PowerUp, both of whom will be required to qualify as an independent director under Nasdaq listing rules, and (ii) five
directors designated by Aspire, at least two of whom will be required to qualify as an independent director under Nasdaq listing rules.
The
parties further agreed to take all action necessary so that the individuals serving as the chief executive officer and chief financial
officer, respectively, of PowerUp immediately after the Closing will be the same individuals (in the same office) as that of the Aspire
immediately prior to the Closing.
Conditions
to Consummation of the Business Combination
The
Business Combination Agreement contains customary conditions to Closing, including the following mutual conditions of the parties (unless
waived): (i) approval of the shareholders of PowerUp and Aspire of the Business Combination and the other matters requiring shareholder
approval; (ii) approvals of any required governmental authorities and completion of any antitrust expiration periods; (iii) receipt of
required third party consents, if any; (iv) no law or order preventing the Business Combination; (v) the Registration Statement having
been declared effective by the SEC; (vi) approval from Nasdaq for the listing of the shares of PowerUp’s common stock to be issued
in connection with the Business Combination (not waivable); and (vii) reconstitution of the post-Closing board of directors as contemplated
under the Business Combination Agreement.
In
addition, unless waived by Aspire, the obligations of Aspire to consummate the Business Combination are subject to the satisfaction of
the following additional conditions, in addition to the delivery by PowerUp of the Related Agreements (as defined and described in greater
detail below), customary certificates and other Closing deliverables: (i) the representations and warranties of PowerUp being true and
correct on and as of the date that is no later than fourteen (14) calendar days from the date of the Business Combination Agreement (the
“Disclosure Schedules Delivery Date”) and on and as of the Closing Date as if made on the Closing Date (subject to customary
exceptions, including materiality qualifiers); (ii) PowerUp having performed in all material respects its obligations and complied in
all material respects with its covenants and agreements under the Business Combination Agreement required to be performed or complied
with by it on or prior to the date of the Closing; (iii) absence of any Material Adverse Effect with respect to PowerUp since the date
of the Business Combination Agreement which is continuing and uncured; (iv) PowerUp shall have made all reasonably necessary arrangements
with the Trustee to the Trust Account to have the Trust Account funds disbursed to PowerUp, and there shall be no actions, suits, proceedings,
arbitrations or mediations pending or threatened by any Person (not including Aspire and its Affiliates) with respect to or against the
Trust Account that would reasonably be expected to have a Material Adverse Effect on PowerUp; and (v) PowerUp having timely cured any
items listed in any notice received from Aspire regarding the items listed or omitted on the disclosure schedules of PowerUp that has
a material impact on Aspire’s willingness or ability to consummate the transactions contemplated by the Business Combination Agreement.
Finally,
unless waived by PowerUp, the obligations of PowerUp to consummate the Business Combination are subject to the satisfaction of the following
additional Closing conditions, in addition to the delivery by Aspire of the Related Agreements (as defined and described in greater detail
below), customary certificates and other Closing deliverables: (i) the representations and warranties of Aspire being true and correct
as of the date of the Business Combination Agreement and as of the Disclosure Schedules Delivery Date and on and as of the Closing Date
as if made on the Closing Date (subject to customary exceptions, including materiality qualifiers); (ii) Aspire having performed in all
material respects its respective obligations and complied in all material respects with its respective covenants and agreements under
the Business Combination Agreement required to be performed or complied with by it on or prior to the date of the Closing; (iii) absence
of any Material Adverse Effect with respect to Aspire and its subsidiaries on a consolidated basis since the date of the Business Combination
Agreement which is continuing and uncured; (iv) Aspire having no less than $0.00 of available cash, after giving effect to the payment
in full of Aspire’s unpaid transaction expenses and PowerUp’s unpaid expenses and liabilities (including, but not limited
to, the Working Capital Loans, as defined in the Business Combination Agreement); and (v) Aspire having timely cured any items listed
in any notice received from PowerUp regarding the items listed or omitted on the disclosure schedules of Aspire that has a material impact
on PowerUp’s willingness or ability to consummate the transactions contemplated by the Business Combination Agreement.
Termination
The
Business Combination Agreement may be terminated under certain customary and limited circumstances at any time prior to the Closing,
including: (i) by mutual written consent of PowerUp and Aspire; (ii) by either PowerUp and Aspire if any of the conditions to Closing
have not been satisfied or waived by August 17, 2025 (the “Outside Date”), provided that any breach or violation of any representation,
warranty or covenant of the party seeking termination is not the cause of the failure of the Closing to occur by the Outside Date; (iii)
by either PowerUp or Aspire if a governmental authority of competent jurisdiction has issued an order or taken any other action permanently
restraining, enjoining or otherwise prohibiting the Business Combination, and such order or other action has become final and non-appealable;
(iv) by either PowerUp or Aspire in the event of the other party’s uncured breach, if such breach would result in the failure of
a closing condition (and so long as the terminating party is not also in breach under the Business Combination Agreement); (v) by PowerUp
if there has been a Material Adverse Effect on Aspire and its subsidiaries on a consolidated basis following the date of the Business
Combination Agreement that is uncured and continuing; (vi) by either PowerUp or Aspire if PowerUp or Aspire holds a special meeting of
its shareholders to approve the Business Combination Agreement and the Business Combination, and the required approvals related to the
Business Combination Agreement and the Business Combination of either PowerUp’s shareholders or Aspire’s shareholders is
not obtained; or (vii) by either PowerUp or Aspire if the applicable conditions set forth in Section 6.2(g) or Section 6.3(f), respectively,
of the Business Combination Agreement are not met.
If
the Business Combination Agreement is terminated, all further obligations of the parties under the Business Combination Agreement (except
for certain obligations) will terminate, and no party to the Business Combination Agreement will have any further liability to any other
party thereto except for liability for fraud. The Business Combination Agreement does not provide for any termination fees.
Trust
Account Waiver
Aspire
and Merger Sub each agreed that they and their affiliates will not have any right, title, interest or claim of any kind in or to any
monies in PowerUp’s trust account (including any distributions therefrom) held for its public shareholders, and agreed not to,
and waived any right to, make any claim against the trust account (including any distributions therefrom) other than in connection with
the Closing.
Governing
Law
The
Business Combination Agreement is governed by the laws of the State of Delaware without regard to the conflict of laws principles thereof.
If a dispute relating to the Business Combination Agreement arises between the parties, and the parties are unable to amicably resolve
that dispute with 10 business days the Business Combination Agreement provides for the arbitration of disputes (except that applications
for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief or application for enforcement
of a resolution).
The
Business Combination Agreement contains representations, warranties and covenants that the respective parties made to each other as of
the date of such agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made
for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the
parties in connection with negotiating the Business Combination Agreement (including being qualified by confidential disclosures made
for the purposes of allocating contractual risk between the parties to the Business Combination Agreement instead of establishing these
matters as facts). The Business Combination Agreement has been filed with this Current Report on Form 8-K to provide investors with information
regarding its terms. It is not intended to provide any other factual information about PowerUp, Aspire, Merger Sub, Sponsor, or any other
party to the Business Combination Agreement. Additionally, the representations, warranties, covenants and agreements contained in the
Business Combination Agreement may be subject to standards of materiality applicable to the contracting parties that differ from those
applicable to investors and reports and documents filed with the SEC. Investors should not rely on the representations, warranties, covenants
and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Business
Combination Agreement. In addition, the representations, warranties, covenants and agreements and other terms of the Business Combination
Agreement may be subject to subsequent waiver or modification. Moreover, information concerning the subject matter of the representations
and warranties and other terms may change after the date of the Business Combination Agreement, which subsequent information may or may
not be fully reflected in PowerUp’s public disclosures.
Related
Agreements
In
connection with the Closing, PowerUp and Aspire will enter into certain additional agreements pursuant to the Business Combination Agreement
(the “Related Agreements”). The terms of such Related Agreements have not yet been negotiated between PowerUp and Aspire.
Finalizing such Related Agreements on terms mutually acceptable to PowerUp and Aspire is a condition to Closing of the Business Combination
Agreement. Specifically, the Business Combination Agreement contemplates delivery of non-competition agreements and lock-up agreements,
each executed by certain of Aspire’s stockholders.
Forward-Looking
Statements
This
Current Report on Form 8-K contains certain statements that are not historical facts and are forward-looking statements within the meaning
of the federal securities laws with respect to the proposed Business Combination between PowerUp and Aspire, including without limitation
statements regarding the anticipated benefits of the proposed Business Combination, the anticipated timing of the proposed Business Combination,
the implied enterprise value, future financial condition and performance of Aspire and the combined company after the closing and expected
financial impacts of the proposed Business Combination, the satisfaction of closing conditions to the proposed Business Combination,
the level of redemptions of PowerUp’s public shareholders and the products and markets and expected future performance and market
opportunities of Aspire. These forward-looking statements generally are identified by the words “believe,” “project,”
“expect,” “anticipate,” “estimate,” “intend,” “think,” “strategy,”
“future,” “opportunity,” “potential,” “plan,” “seeks,” “may,”
“should,” “will,” “would,” “will be,” “will continue,” “will likely
result,” and similar expressions, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking
statements are predictions, projections and other statements about future events that are based on current expectations and assumptions
and, as a result, are subject to risks and uncertainties.
These
forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on 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 factors could cause actual future events to differ materially from the
forward-looking statements in this communication, including but not limited to: (i) the risk that the proposed Business Combination may
not be completed in a timely manner or at all, which may adversely affect the price of PowerUp’s securities; (ii) the risk that
the proposed Business Combination may not be completed by PowerUp’s business combination deadline; (iii) the failure to satisfy
the conditions to the consummation of the proposed Business Combination, including the approval of the Business Combination Agreement
by the shareholders of PowerUp, the satisfaction of the closing requirements and the receipt of certain governmental, regulatory and
third party approvals; (iv) the occurrence of any event, change or other circumstance that could give rise to the termination of the
Business Combination Agreement; (v) redemptions exceeding anticipated levels; (vi) the failure to meet Nasdaq initial listing standards
in connection with the consummation of the proposed Business Combination; (vii) the effect of the announcement or pendency of the proposed
Business Combination on Aspire’s business relationships, operating results, and business generally; (viii) risks that the proposed
Business Combination disrupts current plans and operations of Aspire; (ix) the outcome of any legal proceedings that may be instituted
against Aspire or against PowerUp related to the Business Combination Agreement or the proposed Business Combination; (x) changes in
the markets in which Aspire competes, including with respect to its competitive landscape, technology evolution, or regulatory changes;
(xi) changes in domestic and global general economic conditions; (xii) the risk that Aspire may not be able to execute its growth strategies;
(xiii) risks related to supply chain disruptions; (xiv) the risk that Aspire may not be able to develop and maintain effective internal
controls; (xv) costs related to the proposed Business Combination and the failure to realize anticipated benefits of the proposed Business
Combination or to realize estimated pro forma results and underlying assumptions, including with respect to estimated shareholder redemptions;
(xvi) the ability to recognize the anticipated benefits of the proposed Business Combination and to achieve its commercialization and
development plans, and identify and realize additional opportunities, which may be affected by, among other things, competition, the
ability of Aspire to grow and manage growth economically and hire and retain key employees; (xvii) inability to achieve successful results
or to obtain licensing of third-party intellectual property rights for future discovery and development of Aspire’s projects; (xviii)
failure to commercialize products and achieve market acceptance of such products; (xix) the risk that Aspire will need to raise additional
capital to execute its business plan, which may not be available on acceptable terms or at all; (xx) the risk that Aspire, post-combination,
experiences difficulties in managing its growth and expanding operations; (xxi) the risk of product liability or regulatory lawsuits
or proceedings relating to Aspire’s business; (xxii) risks associated with intellectual property protection; (xxiii) the risk that
Aspire is unable to secure or protect its intellectual property; and (xxiv) those factors discussed in PowerUp’s filings with the
SEC and that will be contained in the proxy statement relating to the proposed Business Combination.
The
foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties
that will be described in the “Risk Factors” section of the registration statement and the amendments thereto, and other
documents to be filed by PowerUp from time to time with the SEC. These filings identify and address other important risks and uncertainties
that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking
statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and
while Aspire and PowerUp may elect to update these forward-looking statements at some point in the future, they assume no obligation
to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise, except as required
by applicable law. Neither of Aspire or PowerUp gives any assurance that Aspire or PowerUp, or the combined company, will achieve expectations.
These forward-looking statements should not be relied upon as representing PowerUp’s or Aspire’s assessments as of any date
subsequent to the date of this Current Report. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Additional
Information and Where to Find It
In
connection with the Business Combination Agreement and the proposed Business Combination, PowerUp intends to file relevant materials
with the SEC, including a registration statement on Form S-4, which will include a proxy statement/prospectus of PowerUp, and will file
other documents regarding the proposed Business Combination with the SEC. This communication is not intended to be, and is not, a substitute
for the proxy statement or any other document that PowerUp has filed or may file with the SEC in connection with the proposed Business
Combination. Shareholders and other interested persons are advised to read, when available, the registration statement and the amendments
thereto, and documents incorporated by reference therein filed in connection with the proposed Business Combination, as these materials
will contain important information about PowerUp, Aspire, the Business Combination Agreement, and the proposed Business Combination.
When available, the definitive proxy statement and other relevant materials for the proposed Business Combination will be mailed to shareholders
of PowerUp as of a record date to be established for voting on the proposed Business Combination. Before making any voting or investment
decision, investors and shareholders of PowerUp are urged to carefully read the entire proxy statement, when available, and any other
relevant documents filed with the SEC, as well as any amendments or supplements to these documents, because they will contain important
information about the proposed Business Combination. PowerUp’s investors and shareholders will also be able to obtain copies of
the proxy statement/prospectus and other documents filed with the SEC that will be incorporated by reference therein, without charge,
once available, at the SEC’s website at www.sec.gov, or by directing a request to: PowerUp Acquisition Corp., 188 Grand Street
Unit #195, New York, NY 10013.
Participants
in the Solicitation
PowerUp,
Aspire, and their respective directors, executive officers, other members of management and employees may be deemed participants in the
solicitation of proxies from PowerUp’s shareholders with respect to the proposed Business Combination. Investors and security holders
may obtain more detailed information regarding the names and interests in the proposed Business Combination of PowerUp’s directors
and officers in PowerUp’s filings with the SEC, including, when filed with the SEC, the registration statement and the amendments
thereto, and other documents filed with the SEC. Such information with respect to Aspire’s directors and executive officers will
also be included in the registration statement.
No
Offer or Solicitation
This
Current Report on Form 8-K is not a solicitation of a proxy, consent or authorization with respect to any securities or in respect of
the proposed Transaction and will not constitute an offer to sell or the solicitation of an offer to buy any securities, nor will there
be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such jurisdiction.
Item
9.01. Financial Statements and Exhibits.
| Exhibit
No. |
|
Description |
| 2.1 |
|
Agreement and Plan of Merger, dated August 26, 2024, by and among PowerUp Acquisition Corp., PowerUp Merger Sub II, Inc., SRIRAMA Associates, LLC, Stephen Quesenberry, and Aspire Biopharma, Inc. |
| |
|
|
| 104 |
|
Cover Page Interactive Data File (embedded with the
Inline XBRL document). |
SIGNATURES
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.
| |
POWERUP ACQUISITION CORP. |
| |
|
|
| |
By: |
/s/ Surendra
Ajjarapu |
| |
|
Surendra Ajjarapu |
| |
|
Chief Executive Officer |
| |
|
|
| Date: August 30, 2024 |
|
|
Exhibit
2.1
Execution
Version
AGREEMENT
AND PLAN OF MERGER
by
and among
POWERUP
ACQUISITION CORP.,
as
the Purchaser,
pOWERUP
MERGER SUB II, Inc.,
as
Merger Sub,
SRIRAMA
ASSOCIATES, LLC,
as
the Sponsor,
StePHEN
Quesenberry
as
the Seller Representative,
and
ASPIRE
BIOPHARMA, INC.,
as
the Company
Dated
as of August 26, 2024
TABLE
OF CONTENTS
| Article
I Merger |
2 |
| 1.1.
Merger |
2 |
| 1.2.
Effective Time |
2 |
| 1.3.
Effect of the Merger |
2 |
| 1.4.
Tax Treatment |
3 |
| 1.5.
Certificate of Incorporation and Bylaws |
3 |
| 1.6.
Directors and Officers of the Surviving Corporation |
3 |
| 1.7.
Loan Consideration |
3 |
| 1.8.
Amended Purchaser Charter |
3 |
| 1.9.
Merger Consideration |
3 |
| 1.10.
Effect of Merger on Company Securities |
4 |
| 1.11.
Surrender of Company Securities and Disbursement of Merger Consideration |
4 |
| 1.12.
Effect of Transaction on Merger Sub Stock |
6 |
| 1.13.
Taking of Necessary Action; Further Action |
6 |
| 1.14.
Appraisal and Dissenter’s Rights |
6 |
| 1.15.
[Reserved]. |
6 |
| 1.16.
Withholding Rights |
6 |
| Article
II Closing |
7 |
| 2.1.
Closing |
7 |
| Article
III Representations and Warranties of the Purchaser |
7 |
| 3.1.
Organization and Standing |
7 |
| 3.2.
Authorization; Binding Agreement |
7 |
| 3.3.
Governmental Approvals |
8 |
| 3.4.
Non-Contravention |
8 |
| 3.5.
Capitalization |
8 |
| 3.6.
SEC Filings and Purchaser Financials |
9 |
| 3.7.
Absence of Certain Changes |
10 |
| 3.8.
Compliance with Laws |
10 |
| 3.9.
Actions; Orders; Permits |
10 |
| 3.10.
Taxes and Returns |
11 |
| 3.11.
Employees and Employee Benefit Plans |
12 |
| 3.12.
Properties |
12 |
| 3.13.
Material Contracts |
12 |
| 3.14.
Transactions with Affiliates |
13 |
| 3.15.
Merger Sub Activities |
13 |
| 3.16.
Investment Company Act |
13 |
| 3.17.
Finders and Brokers |
13 |
| 3.18.
Ownership of Merger Consideration |
13 |
| 3.19.
Certain Business Practices |
13 |
| 3.20.
Insurance |
14 |
| 3.21.
Trust Account |
14 |
| 3.22.
Litigation |
14 |
| 3.23.
Independent Investigation |
15 |
| Article
IV Representations and Warranties of the Company |
15 |
| 4.1.
Organization and Standing |
15 |
| 4.2.
Authorization; Binding Agreement |
15 |
| 4.3.
Capitalization |
16 |
| 4.4.
No Subsidiaries |
16 |
| 4.5.
Governmental Approvals |
16 |
| 4.6.
Non-Contravention |
16 |
| 4.7.
Financial Statements |
16 |
| 4.8.
Absence of Certain Changes |
17 |
| 4.9.
Compliance with Laws including Privacy Laws; Privacy Policies and Certain Contracts |
19 |
| 4.10.
Company Permits |
19 |
| 4.11.
Litigation |
19 |
| 4.12.
Material Contracts |
20 |
| 4.13.
Intellectual Property |
21 |
| 4.14.
Taxes and Returns |
24 |
| 4.15.
Real Property |
25 |
| 4.16.
Personal Property |
25 |
| 4.17.
Title to and Sufficiency of Assets |
25 |
| 4.18.
Employee Matters |
26 |
| 4.19.
Benefit Plans |
27 |
| 4.20.
Environmental Matters |
28 |
| 4.21.
Transactions with Related Persons |
28 |
| 4.22.
Insurance |
29 |
| 4.23.
Books and Records |
29 |
| 4.24.
Top Customers and Suppliers |
29 |
| 4.25.
Certain Business Practices |
30 |
| 4.26.
Compliance with FDA Laws |
30 |
| 4.27.
Investment Company Act |
31 |
| 4.28.
Finders and Brokers |
31 |
| 4.29.
Independent Investigation |
31 |
| 4.30.
Information Supplied |
31 |
| 4.31.
Disclosure |
31 |
| Article
V Covenants |
32 |
| 5.1.
Access and Information |
32 |
| 5.2.
Conduct of Business of the Company |
33 |
| 5.3.
Conduct of Business of the Purchaser |
35 |
| 5.4.
Annual and Interim Financial Statements |
37 |
| 5.5.
Purchaser Public Filings |
37 |
| 5.6.
No Solicitation |
37 |
| 5.7.
No Trading |
38 |
| 5.8.
Notification of Certain Matters |
38 |
| 5.9.
Efforts |
39 |
| 5.10.
Tax Matters |
40 |
| 5.11.
Further Assurances |
41 |
| 5.12.
The Registration Statement |
41 |
| 5.13.
Company Stockholder Meeting |
42 |
| 5.14.
Public Announcements |
42 |
| 5.15.
Confidential Information |
43 |
| 5.16.
Documents and Information |
44 |
| 5.17.
Post-Closing Board of Directors and Executive Officers |
44 |
| 5.18.
Purchaser Indemnification of Directors and Officers; Tail Insurance |
45 |
| 5.19.
Company Indemnification of Directors and Officers; Tail Insurance |
45 |
| 5.20.
Post-Closing Assumption or Creation of Benefit Plans |
46 |
| 5.21.
Pre-Closing Company Capital Raise |
46 |
| 5.22.
Non-Competition Agreements |
46 |
| 5.23.
Section 16 Matters |
46 |
| 5.24.
Domestication |
46 |
| 5.25.
Incentive Equity Plan |
46 |
| 5.26.
Disclosure Schedules |
47 |
| Article
VI Closing Conditions |
47 |
| 6.1.
Conditions to Each Party’s Obligations |
47 |
| 6.2.
Conditions to Obligations of the Company |
48 |
| 6.3.
Conditions to Obligations of the Purchaser |
49 |
| 6.4.
Frustration of Conditions. |
51 |
| Article
VII Termination and Expenses |
51 |
| 7.1.
Termination |
51 |
| 7.2.
Effect of Termination |
52 |
| 7.3.
Fees and Expenses |
52 |
| Article
VIII Waivers and Releases |
53 |
| 8.1.
Waiver of Claims Against Trust |
53 |
| Article
IX Miscellaneous |
54 |
| 9.1.
Notices |
54 |
| 9.2.
Binding Effect; Assignment |
54 |
| 9.3.
Third Parties |
55 |
| 9.4.
Arbitration |
55 |
| 9.5.
Governing Law; Jurisdiction |
55 |
| 9.6.
WAIVER OF JURY TRIAL |
56 |
| 9.7.
Specific Performance |
56 |
| 9.8.
Severability |
56 |
| 9.9.
Amendment |
56 |
| 9.10.
Waiver |
56 |
| 9.11.
Entire Agreement |
57 |
| 9.12.
Interpretation |
57 |
| 9.13.
Counterparts |
58 |
| 9.14.
Purchaser Representative |
58 |
| 9.15.
Seller Representative |
59 |
| 9.16.
Legal Representation |
60 |
| 9.17.
Non-Survival of Representations, Warranties |
61 |
| Article
X Definitions |
61 |
| 10.1.
Certain Definitions |
61 |
| 10.2.
Section References |
71 |
AGREEMENT
AND PLAN OF MERGER
This
Agreement and Plan of Merger (this “Agreement”) is made and entered into as of August 26, 2024 by and among
(i) PowerUp Acquisition Corp., incorporated as a Cayman Islands exempted company (together with its successors, the “Purchaser”),
(ii) PowerUp Merger Sub II, Inc., a Delaware corporation and a wholly owned subsidiary of the Purchaser (“Merger Sub”),
(iii) SRIRAMA Associates, LLC, a Delaware limited liability company, (the “Sponsor” and the “Purchaser
Representative”), (iv) Stephen Quesenberry, in the capacity as the representative from and after the Effective Time
for the Company Stockholders (as defined below) as of immediately prior to the Effective Time in accordance with the terms and conditions
of this Agreement (the “Seller Representative”), and (v) Aspire Biopharma, Inc., a Puerto Rico corporation
(the “Company”). The Purchaser, Merger Sub, the Sponsor, the Seller Representative and the Company are sometimes
referred to herein individually as a “Party” and, collectively, as the “Parties”.
RECITALS:
A.
The Company works with distinguished scientists and experienced biopharmaceutical leaders to develop and market disruptive technology
for novel delivery mechanisms for a variety of FDA approved and OTC drugs, as well as, the nutraceutical and supplement markets.
B.
The Purchaser owns all of the issued and outstanding capital stock of Merger Sub, which was formed for the sole purpose of the Merger
(as defined below).
C.
The Parties intend to effect the merger of Merger Sub with and into the Company, with the Company continuing as the surviving entity
(the “Merger”), as a result of which all of the issued and outstanding capital stock of the Company immediately
prior to the Effective Time shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, in exchange
for the right for each Company Stockholder to receive its Pro Rata Share (as defined herein) of the Merger Consideration (as defined
herein), all upon the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable provisions
of the Delaware General Corporation Law (as amended, the “DGCL”), all in accordance with the terms of this
Agreement.
D.
As a condition to Closing, the Significant Company Holders shall each enter into a Lock-Up Agreement with Purchaser and the Purchaser
Representative, the terms of which are pari passu with Sponsor’s Lock-Up Agreement with Purchaser (each a “Lock-Up
Agreement”), and shall become effective as of the Closing.
E.
Prior to the Closing Date and subject to the satisfaction or waiver of the conditions of this Agreement, the Purchaser shall migrate
out of the Cayman Islands and domesticate (the “SPAC Domestication”) as a Delaware corporation in accordance
with Section 388 of the DGCL and Part XII of the Cayman Islands Companies Act (2021 Revision) (the “Companies Act”),
and the Purchaser intends that such SPAC Domestication shall be treated as a “reorganization” within the meaning of Section
368(a)(1)(F) of the Code (as defined herein).
F.
Prior to the Closing Date and subject to the satisfaction or waiver of the conditions of this Agreement, the Company shall migrate out
of Puerto Rico and domesticate (the “Company Domestication”) as a Delaware corporation in accordance with Section
388 of the DGCL and Section 3746 of the Puerto Rico General Corporations Act (2009) (the “PRGCA”), and the
Company intends that such Company Domestication shall be treated as a “reorganization” within the meaning of Section 368(a)(1)(F)
of the Code (as defined herein).
G.
Following the SPAC Domestication, the Purchaser shall adopt a certificate of incorporation, in a form mutually agreeable to the Purchaser
and the Company (the “Purchaser Certificate of Incorporation”), and bylaws, in a form mutually agreeable to
Purchaser and the Company (the “Purchaser Bylaws”) and, (i) in connection with the SPAC Domestication, all
issued and outstanding Old Purchaser Preference Shares, all issued and outstanding Old Purchaser Class A Ordinary Shares, all issued
and outstanding Old Purchaser Class B Ordinary Shares, all issued and outstanding Old Purchaser Private Warrants, all issued and outstanding
Old Purchaser Public Warrants, and all issued and outstanding Old Purchaser Public Units shall automatically convert, on a one-for-one
basis, into shares of Purchaser Preferred Stock, shares of Purchaser Class A Common Stock, shares of Purchaser Class B Common Stock,
Purchaser Private Warrants, Purchaser Public Warrants, and Purchaser Public Units, respectively, and (ii) immediately following the SPAC
Domestication, (a) each share of Purchaser Class B Common Stock shall convert automatically, on a one-for-one basis, into one share of
Purchaser Class A Common Stock, (b) the Purchaser Class A Common Stock will be reclassified as Purchaser Common Stock, and (c) each Purchaser
Public Unit will be separated into Purchaser Common Stock and Purchaser Public Warrants (collectively, the “SPAC Conversion”).
H.
Following the Company Domestication, the Company shall adopt a certificate of incorporation, in a form mutually agreeable to the Purchaser
and the Company (the “Company Certificate of Incorporation”), and bylaws, in a form mutually agreeable to Purchaser
and the Company (the “Company Bylaws”) and, in connection with the Company Domestication, all issued and outstanding
shares of Old Company Common Stock, and all issued and outstanding shares of Old Company Series A Preferred Stock shall automatically
convert, on a one-for-one basis, into shares of Company Common Stock and shares of Company Series A Preferred respectively.
I.
The boards of directors of the Company, the Purchaser and Merger Sub have each unanimously (i) determined that the Merger is fair, advisable
and in the best interests of their respective companies and stockholders, (ii) approved this Agreement and the transactions contemplated
hereby (the “Transaction”), including the SPAC Domestication, Company Domestication, SPAC Conversion, Company
Conversion, and Merger, upon the terms and subject to the conditions set forth herein, and (iii) determined to recommend to their respective
stockholders the approval and adoption of this Agreement and the transactions contemplated hereby, including the SPAC Domestication,
Company Domestication, SPAC Conversion, Company Conversion, and Merger.
J.
The Parties intend that the Merger will qualify as a tax-free “reorganization” within the meaning of Section 368(a) of the
Code and the Treasury Regulations (as defined herein) promulgated thereunder, and this Agreement is intended to be a “plan of reorganization”
for purposes of Section 354.361 and 368 of the Code and within the meaning of Treasury Regulations Section 1.368-2(g).
K.
Certain capitalized terms used herein are defined in Article X hereof.
NOW,
THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below,
and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby,
the Parties agree as follows:
Article
I
Merger
1.1.
Merger. At the Effective Time, and subject to and upon the terms and conditions of this Agreement, and in accordance with the
applicable provisions of the DGCL, Merger Sub and the Company shall consummate the Merger, pursuant to which Merger Sub shall be merged
with and into the Company, following which the separate corporate existence of Merger Sub shall cease and the Company shall continue
as the surviving corporation. The Company, as the surviving corporation after the Merger, is hereinafter sometimes referred to as the
“Surviving Corporation” (provided, that references to the Company for periods after the Effective Time shall
include the Surviving Corporation).
1.2.
Effective Time. The Parties shall cause the Merger to be consummated by filing the Certificate of Merger for the merger of Merger
Sub with and into the Company (the “Certificate of Merger”) with the Secretary of State of the State of Delaware
in accordance with the relevant provisions of the DGCL (the time of such filing, or such later time as may be specified in the Certificate
of Merger, being the “Effective Time”).
1.3.
Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate
of Merger, and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective
Time, all the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of Merger Sub
and the Company shall become the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations
of the Surviving Corporation, which shall include the assumption by the Surviving Corporation of any and all agreements, covenants, duties
and obligations of Merger Sub and the Company set forth in this Agreement to be performed after the Effective Time.
1.4.
Tax Treatment. For federal income tax purposes, the Merger is intended to constitute a “reorganization” within the
meaning of Section 368 of the Code that is tax-free to the Purchaser under Section 1032 of the Code, to the Company under Section 361
of the Code, and to the Company Security Holders under Section 354 or Section 356 of the Code (except to the extent of any “boot”
received). The Parties adopt this Agreement as a “plan of reorganization” for purposes of Section 354, 361, and 368 of the
Code and within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations.
1.5.
Certificate of Incorporation and Bylaws. At the Effective Time, the Certificate of Incorporation and Bylaws of the Company, each
as in effect immediately prior to the Effective Time, shall automatically be amended and restated in their entirety to read identically
to the Certificate of Incorporation and Bylaws of Merger Sub, as in effect immediately prior to the Effective Time, and such amended
and restated Certificate of Incorporation and Bylaws shall become the respective Certificate of Incorporation and Bylaws of the Surviving
Corporation, except that the name of the Surviving Corporation in such Certificate of Incorporation and Bylaws shall be amended to be
“Aspire Biopharma, Inc.”
1.6.
Directors and Officers of the Surviving Corporation. At the Effective Time, the board of directors and executive officers of the
Surviving Corporation shall be the board of directors and executive officers of the Purchaser, after giving effect to Section 5.17,
each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation until their respective
successors are duly elected or appointed and qualified or their earlier death, resignation or removal.
1.7.
Loan Consideration. At the Effective Time, the Purchaser shall issue the Sponsor up to 3,750,000 shares of Purchaser Common Stock
(which includes 1,750,000 shares to be issued for Prior Working Capital Loans, and up to 2,000,000 shares to be issued for Future Working
Capital Loans) as partial consideration for the Sponsor entering into Working Capital Loans, such exact number to be the actual dollar
amount of principal loaned as Working Capital Loans (i.e., one share for each $1.00 loaned).
1.8.
Amended Purchaser Charter. Effective upon the Effective Time, the Purchaser shall amend and restate its Certificate of Incorporation
in a form mutually agreeable to the Company and the Purchaser (the “Amended Purchaser Charter”),which shall,
among other matters, amend the Purchaser’s Certificate of Incorporation to (i) provide that the name of the Purchaser shall be
changed to “Aspire Biopharma Holdings, Inc.”, or such other name as mutually agreed to by the Parties, (ii) provide for size
and structure of the Post-Closing Purchaser Board in accordance with Section 5.17, and (iii) remove and change certain provisions
in the Certificate of Incorporation related to the Purchaser’s status as a blank check company.
1.9.
Merger Consideration.
(a)
As consideration for the Merger, the Company Security Holders collectively shall be entitled to receive from the Purchaser, in the aggregate,
a number of shares of Purchaser Common Stock with an aggregate value equal to the Merger Consideration and each share of Purchaser Common
Stock valued at the Per Share Price. The Merger Consideration
shall be allocated among the Company Stockholders in accordance with their respective Pro Rata Shares.
(b)
Additionally, after the Closing, subject to the terms and conditions set forth in this Agreement, the Purchaser or Merger Sub shall assume
the Benefit Plans of the Company or create new Benefit Plans, including, but not limited to, equity incentive plans, that are substantially
similar to the Benefit Plans previously approved by the board of directors of the Company.
1.10.
Effect of Merger on Company Securities. At the Effective Time, by virtue of the Merger and without any action on the part of any
Party or the holders of any Company Securities or the holders of any shares of capital stock of the Purchaser or Merger Sub:
(a)
Company Stock. Subject to clause (b) below, all shares of Company Stock issued and outstanding immediately prior to the Effective
Time will automatically be cancelled and cease to exist in exchange for the right to receive the Merger Consideration, with each Company
Stockholder being entitled to receive its Pro Rata Share of the Merger Consideration, without interest, upon delivery of the Transmittal
Documents in accordance with Section 1.11. As of the Effective Time, each Company Stockholder shall cease to have any other rights
in and to the Company or the Surviving Corporation (other than the rights set forth in Section 1.14 below).
(b)
Treasury Stock. Notwithstanding clause (a) above or any other provision of this Agreement to the contrary, at the Effective Time,
if there are any Company Securities that are owned by the Company as treasury shares or any Company Securities owned by any direct or
indirect Subsidiary of the Company immediately prior to the Effective Time, such Company Securities shall be canceled and shall cease
to exist without any conversion thereof or payment therefor.
(c)
Dissenting Shares. Each of the Dissenting Shares issued and outstanding immediately prior to the Effective Time shall be cancelled
and cease to exist in accordance with Section 1.14 and shall thereafter represent only the right to receive the applicable payments
set forth in Section 1.14.
(d)
Termination of Company Warrants. Prior to the Effective Time, the Company shall cause each Company Warrant to be terminated in
exchange for shares of Company Common Stock (the “Company Warrant Termination”).
(e)
Conversion of Company Series A Preferred Stock. Immediately prior to the Effective Time, the Company shall cause (i) each share
of Company Series A Preferred Stock that is issued and outstanding immediately prior to the Effective Time to be automatically converted
into a number of shares of Company Common Stock at the then-effective conversion rate (the “Preferred Conversion”).
All of the shares of Company Series A Preferred Stock converted into shares of Company Common Stock shall no longer be outstanding and
shall cease to exist, and each holder of Company Series A Preferred Stock shall thereafter cease to have any rights with respect to such
Company Series A Preferred Stock.
1.11.
Surrender of Company Securities and Disbursement of Merger Consideration.
(a)
Prior to the Effective Time, the Purchaser shall appoint its transfer agent, Equiniti Trust Company, LLC, or another agent reasonably
acceptable to the Company (the “Exchange Agent”), for the purpose of exchanging the certificates representing
Company Stock (“Company Certificates”). At or prior to the Effective Time, the Purchaser shall deposit, or
cause to be deposited, with the Exchange Agent the Merger Consideration. At or prior to the Effective Time, the Purchaser shall send,
or shall cause the Exchange Agent to send, to each Company Stockholder, a letter of transmittal for use in such exchange, in the form
mutually agreed to by the Purchaser and the Company (a “Letter of Transmittal”) (which shall specify that the
delivery of Company Certificates in respect of the Merger Consideration shall be effected, and risk of loss and title shall pass, only
upon proper delivery of the Company Certificates to the Exchange Agent (or a Lost Certificate Affidavit)) for use in such exchange.
(b)
Each Company Stockholder shall be entitled to receive its Pro Rata Share of the Merger Consideration in respect of the Company Stock
represented by the Company Certificate(s) (excluding any Company Securities described in Sections 1.10(b) or 1.10(c)),
as soon as reasonably practicable after the Effective Time, but subject to the delivery to the Exchange Agent of the following items
prior thereto (collectively, the “Transmittal Documents”): (i) the Company Certificate(s) for its Company Stock
(or a Lost Certificate Affidavit), together with a properly completed and duly executed Letter of Transmittal and (ii) such other documents
as may be reasonably requested by the Exchange Agent or the Purchaser. Until so surrendered, each Company Certificate shall represent
after the Effective Time for all purposes only the right to receive such portion of the Merger Consideration attributable to such Company
Certificate.
(c)
If any portion of the Merger Consideration is to be delivered or issued to a Person other than the Person in whose name the surrendered
Company Certificate is registered immediately prior to the Effective Time, it shall be a condition to such delivery that (i) the transfer
of such Company Stock shall have been permitted in accordance with the terms of the Company’s Organizational Documents and any
stockholders agreement with respect to the Company, each as in effect immediately prior to the Effective Time, (ii) such Company Certificate
shall be properly endorsed or shall otherwise be in proper form for transfer and, (iii) the recipient such portion of the Merger Consideration,
or the Person in whose name such portion of the Merger Consideration is delivered or issued, shall have already executed and delivered,
if a Significant Company Holder, counterparts to a Lock-Up Agreement, and such other Transmittal Documents as are reasonably deemed necessary
by the Exchange Agent or the Purchaser and (iv) the Person requesting such delivery shall pay to the Exchange Agent any transfer or other
Taxes required as a result of such delivery to a Person other than the registered holder of such Company Certificate or establish to
the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(d)
Notwithstanding anything to the contrary contained herein, in the event that any Company Certificate shall have been lost, stolen or
destroyed, in lieu of delivery of a Company Certificate to the Exchange Agent, the Company Stockholder may instead deliver to the Exchange
Agent an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to the Purchaser (a “Lost
Certificate Affidavit”), which at the reasonable discretion of the Purchaser may include a requirement that the owner of
such lost, stolen or destroyed Company Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim
that may be made against the Purchaser or the Surviving Corporation with respect to the shares of Company Stock represented by the Company
Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly delivered in accordance with this
Section 1.11(d) shall be treated as a Company Certificate for all purposes of this Agreement.
(e)
After the Effective Time, there shall be no further registration of transfers of Company Stock. If, after the Effective Time, Company
Certificates are presented to the Surviving Corporation, the Purchaser or the Exchange Agent, they shall be canceled and exchanged for
the applicable portion of the Merger Consideration provided for, and in accordance with the procedures set forth in this Section 1.11.
No dividends or other distributions declared or made after the date of this Agreement with respect to Purchaser Common Stock with a record
date after the Effective Time will be paid to the holders of any Company Certificates that have not yet been surrendered with respect
to the Purchaser Common Stock to be issued upon surrender thereof until the holders of record of such Company Certificates shall surrender
such certificates (or provide a Lost Certificate Affidavit), if applicable, and provide the other Transmittal Documents. Subject to applicable
Law, following surrender of any such Company Certificates (or delivery of a Lost Certificate Affidavit), if applicable, and delivery
of the other Transmittal Documents, Purchaser shall promptly deliver to the record holders thereof, without interest, the certificates
representing the Purchaser Common Stock issued in exchange therefor and the amount of any such dividends or other distributions with
a record date after the Effective Time theretofore paid with respect to such Purchaser Common Stock.
(f)
All securities issued upon the surrender of Company Securities in accordance with the terms hereof shall be deemed to have been issued
in full satisfaction of all rights pertaining to such Company Securities. Any portion of the Merger Consideration made available to the
Exchange Agent pursuant to Section 1.11(a) that remains unclaimed by Company Stockholders two (2) years after the Effective Time
shall be returned to the Purchaser, upon demand, and any such Company Stockholder who has not exchanged its Company Stock for the applicable
portion of the Merger Consideration in accordance with this Section 1.11 prior to that time shall thereafter look only to the
Purchaser for payment of the portion of the Merger Consideration in respect of such shares of Company Stock without any interest thereon
(but with any dividends paid with respect thereto). Notwithstanding the foregoing, none of the Surviving Corporation, the Purchaser or
any Party shall be liable to any Person for any amount properly paid to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(g)
Notwithstanding anything to the contrary contained herein, no fraction of a share of Purchaser Common Stock will be issued by virtue
of the Merger or the transactions contemplated hereby (including the Earnout), and each Person who would otherwise be entitled to a fraction
of a share of Purchaser Common Stock (after aggregating all fractional shares of Purchaser Common Stock that otherwise would be received
by such holder) shall instead have the number of shares of Purchaser Common Stock issued to such Person rounded down in the aggregate
to the nearest whole share of Purchaser Common Stock.
1.12.
Effect of Transaction on Merger Sub Stock. At the Effective Time, by virtue of the Merger and without any action on the part of
any Party or the holders of any Company Securities or the holders of any shares of capital stock of the Purchaser or Merger Sub, each
share of Merger Sub Common Stock outstanding immediately prior to the Effective Time shall be converted into an equal number of shares
of common stock of the Surviving Corporation, with the same rights, powers and privileges as the shares so converted and shall constitute
the only outstanding shares of capital stock of the Surviving Corporation.
1.13.
Taking of Necessary Action; Further Action. If, at any time after the Effective Time, any further action is necessary or desirable
to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets,
property, rights, privileges, powers and franchises of the Company and Merger Sub, the officers and directors of the Company and Merger
Sub are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary
action, so long as such action is not inconsistent with this Agreement.
1.14.
Appraisal and Dissenter’s Rights. No Company Stockholder who has validly exercised its appraisal rights pursuant to Section
262 of the DGCL (a “Dissenting Stockholder”) with respect to its Company Stock (such shares, “Dissenting
Shares”) shall be entitled to receive any portion of the Merger Consideration with respect to the Dissenting Shares owned
by such Dissenting Stockholder unless and until such Dissenting Stockholder shall have effectively withdrawn or lost its appraisal rights
under the DGCL. Each Dissenting Stockholder shall be entitled to receive only the payment resulting from the procedure set forth in Section
262 of the DGCL with respect to the Dissenting Shares owned by such Dissenting Stockholder. The Company shall give the Purchaser and
the Purchaser Representative (i) prompt notice of any written demands for appraisal, attempted withdrawals of such demands, and any other
instruments served pursuant to applicable Laws that are received by the Company relating to any Dissenting Stockholder’s rights
of appraisal and (ii) the opportunity to direct all negotiations and proceedings with respect to demand for appraisal under the DGCL.
The Company shall not, except with the prior written consent of the Purchaser and the Purchaser Representative, voluntarily make any
payment with respect to any demands for appraisal, offer to settle or settle any such demands or approve any withdrawal of any such demands.
Notwithstanding anything to the contrary contained in this Agreement, for all purposes of this Agreement, the Merger Consideration shall
be reduced by the Pro Rata Share of any Dissenting Stockholders attributable to any Dissenting Shares and the Dissenting Stockholders
shall have no rights to any portion of the Merger Consideration with respect to any Dissenting Shares.
1.15.
[Reserved].
1.16.
Withholding Rights. Notwithstanding anything in this Agreement to the contrary, Purchaser, Merger Sub, the Company, the Surviving
Corporation, and their respective Affiliates shall be entitled to deduct and withhold from amounts otherwise payable pursuant to this
Agreement, any amount required to be deducted and withheld with respect to the making of such payment under applicable Law; provided,
that if Purchaser, Merger Sub, any of their respective Affiliates, or any party acting on their behalf determines that any payment to
any stockholder hereunder is subject to deduction or withholding, then Purchaser shall (i) provide notice to such stockholder as soon
as reasonably practicable after such determination and (ii) cooperate with such stockholder to reduce or eliminate any such deduction
or withholding to the extent permitted by applicable Law. To the extent that amounts are so withheld and paid over to the appropriate
Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in
respect of which such deduction and withholding was made. The Parties shall cooperate in good faith to eliminate or reduce any such deduction
or withholding (including through the request and provision of any statements, forms or other documents to reduce or eliminate any such
deduction or withholding).
Article
II
Closing
2.1.
Closing. Subject to the satisfaction or waiver of the conditions set forth in Article VI, the consummation of the transactions
contemplated by this Agreement (the “Closing”) shall take place at such place (including remotely), date and
time to be agreed upon by Purchaser and the Company, which date shall be no later than the third (3rd) Business Day after
all the Closing conditions to this Agreement have been satisfied or waived (the date and time at which the Closing is actually held being
the “Closing Date”).
Article
III
Representations and Warranties of the Purchaser
Except
as set forth in the Purchaser’s SEC Reports filed or submitted on or prior to the Disclosure Schedule Delivery Date (excluding
any disclosures in any risk factors section that do not constitute statements of fact or factual matters, disclosures in any forward-looking
statements disclaimer and other disclosures that are generally cautionary, predictive or forward-looking in nature) or in the disclosure
schedules delivered by the Purchaser to the Company on the Disclosure Schedule Delivery Date (the “Purchaser Disclosure Schedules”),
the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, the Purchaser represents
and warrants to the Company, as of the date hereof, as of the Disclosure Schedule Delivery Date, and as of the Closing Date, as follows:
3.1.
Organization and Standing. The Purchaser is a company duly incorporated, validly existing and in good standing under the Laws
of the Cayman Islands and will be a Delaware corporation following the Domestication. 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 would not reasonably be expected to have a Material Adverse Effect on the Purchaser. The Purchaser
has heretofore made available to the Company accurate and complete copies of its Organizational Documents, as currently in effect. The
Purchaser is not in violation of any provision of its Organizational Documents in any material respect.
3.2.
Authorization; Binding Agreement. The Purchaser has all requisite corporate power and authority to execute and deliver this Agreement
and each Ancillary Document to which it is a party, to perform the Purchaser’s obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby, subject to obtaining the Required Purchaser Stockholder Approval. The execution and
delivery of this Agreement and each Ancillary Document to which it is a party and the consummation of the transactions contemplated hereby
and thereby (a) have been duly and validly authorized by the board of directors of the Purchaser, and (b) other than the Required Purchaser
Stockholder Approval, no other corporate proceedings, other than as set forth elsewhere in the Agreement, on the part of the Purchaser
are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate
the transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to which the Purchaser is a party
shall be when delivered, duly and validly executed and delivered by the Purchaser 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, enforceable against the Purchaser in accordance with its terms, except
to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium laws and
other laws of general application affecting the enforcement of creditors’ rights generally or by any applicable statute of limitation
or by any valid defense of set-off or counterclaim, and the fact that equitable remedies or relief (including the remedy of specific
performance) are subject to the discretion of the court from which such relief may be sought (collectively, the “Enforceability
Exceptions”).
3.3.
Governmental Approvals. Except as otherwise described in Schedule 3.3 of the Purchaser Disclosure Schedules, no Consent
of or with any Governmental Authority, on the part of the Purchaser is required to be obtained or made in connection with the execution,
delivery or performance by the Purchaser of this Agreement and each Ancillary Document to which it is a party or the consummation by
the Purchaser of the transactions contemplated hereby and thereby, other than (a) pursuant to Antitrust Laws, (b) such filings as contemplated
by this Agreement, (c) any filings required with Nasdaq, NYSE or the SEC with respect to the transactions contemplated by this Agreement,
(d) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities Laws,
and the rules and regulations thereunder, and (e) where the failure to obtain or make such Consents or to make such filings or notifications,
would not reasonably be expected to have a Material Adverse Effect on the Purchaser.
3.4.
Non-Contravention. Except as otherwise described in Schedule 3.4 of the Purchaser Disclosure Schedules, the execution and
delivery by the Purchaser of this Agreement and each Ancillary Document to which it is a party, the consummation by the Purchaser of
the transactions contemplated hereby and thereby, and compliance by the Purchaser with any of the provisions hereof and thereof, will
not (a) conflict with or violate any provision of the Purchaser’s Organizational Documents, (b) subject to obtaining the Consents
from Governmental Authorities referred to in Section 3.3 hereof, and the waiting periods referred to therein having expired, and
any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any Law, Order or Consent applicable
to the Purchaser 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 under, (v) result in a right of
termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the
creation of any Lien upon any of the properties or assets of the Purchaser under, (viii) give rise to any obligation to obtain any third
party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim
a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any
right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any Purchaser Material Contract, except
for any deviations from any of the foregoing clauses (a), (b) or (c) that would not reasonably be expected to have a Material Adverse
Effect on the Purchaser.
3.5.
Capitalization.
(a)
Prior to giving effect to the SPAC Domestication and SPAC Conversion, Purchaser is authorized to issue (i) 300,000,000 Old Purchaser
Class A Ordinary Shares, (ii) 50,000,000 Old Purchaser Class B Ordinary Shares, and (iii) 5,000,000 Old Purchaser Preference Shares.
The issued and outstanding Old Purchaser Securities as of the Disclosure Schedule Deliver Date are set forth on Schedule 3.5(a)
of the Purchaser Disclosure Schedules. As of the Disclosure Schedule Delivery Date, there are no issued or outstanding Old Purchaser
Preference Shares. All outstanding Old 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 Companies Act of the Cayman Islands, Purchaser’s Organizational Documents or any Contract
to which Purchaser is a party. None of the outstanding Old Purchaser Securities have been issued in violation of any applicable securities
Laws.
(b)
Prior to giving effect to the merger, Merger Sub is authorized to issue 1,000 shares of Merger Sub Common Stock, of which 1,000 shares
are issued and outstanding, and all of which are owned by the Purchaser. Prior to giving effect to the transactions contemplated by this
Agreement, other than Merger Sub, Purchaser does not have any Subsidiaries or own any equity interests in any other Person.
(c)
Except as set forth in Schedule 3.5(a) or Schedule 3.5(c) of the Purchaser Disclosure Schedules, there are no (i) outstanding
options, warrants, puts, calls, convertible securities, preemptive or similar rights, (ii) bonds, debentures, notes or other Indebtedness
having general voting rights or that are convertible or exchangeable into securities having such rights or (iii) subscriptions or other
rights, agreements, arrangements, Contracts or commitments of any character (other than this Agreement and the Ancillary Documents),
(A) relating to the issued or unissued shares of Purchaser or (B) obligating Purchaser to issue, transfer, deliver or sell or cause to
be issued, transferred, delivered, sold or repurchased any options or shares or securities convertible into or exchangeable for such
shares, or (C) obligating Purchaser to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement,
arrangement or commitment for such capital shares. Other than the Redemption or as expressly set forth in this Agreement, there are no
outstanding obligations of Purchaser to repurchase, redeem or otherwise acquire any shares of Purchaser or to provide funds to make any
investment (in the form of a loan, capital contribution or otherwise) in any Person. Except as set forth in Schedule 3.5(c) of
the Purchaser Disclosure Schedules, there are no shareholders agreements, voting trusts or other agreements or understandings to which
Purchaser is a party with respect to the voting of any shares of Purchaser.
(d)
All Indebtedness of Purchaser as of the Disclosure Schedule Delivery Date is disclosed on Schedule 3.5(d) of the Purchaser Disclosure
Schedules. No Indebtedness of Purchaser contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence
of Indebtedness by Purchaser or (iii) the ability of Purchaser to grant any Lien on its properties or assets.
(e)
Since the date of formation of Purchaser, and except as contemplated by this Agreement, Purchaser has not declared or paid any distribution
or dividend in respect of its shares and, except as required pursuant to Purchaser’s Charter Documents, has not repurchased, redeemed
or otherwise acquired any of its shares, and Purchaser’s board of directors has not authorized any of the foregoing.
3.6.
SEC Filings and Purchaser Financials.
(a)
The Purchaser, since the IPO, has filed all forms, reports, schedules, statements, registration statements, prospectuses and other documents
required to be filed or furnished by the Purchaser with the SEC under the Securities Act and/or the Exchange Act, together with any amendments,
restatements or supplements thereto, and will file all such forms, reports, schedules, statements and other documents required to be
filed subsequent to the date of this Agreement. Except to the extent available on the SEC’s web site through EDGAR, the Purchaser
has delivered to the Company copies in the form filed with the SEC of all of the following: (i) the Purchaser’s annual reports
on Form 10-K for each fiscal year of the Purchaser beginning with the first year the Purchaser was required to file such a form, (ii)
the Purchaser’s quarterly reports on Form 10-Q for each fiscal quarter that the Purchaser filed such reports to disclose its quarterly
financial results in each of the fiscal years of the Purchaser referred to in clause (i) above, (iii) all other forms, reports, registration
statements, prospectuses and other documents (other than preliminary materials) filed by the Purchaser with the SEC since the beginning
of the first fiscal year referred to in clause (i) above (the forms, reports, registration statements, prospectuses and other documents
referred to in clauses (i), (ii) and (iii) above, whether or not available through EDGAR, are, collectively, the “SEC Reports”)
and (iv) all certifications and statements required by (A) Rules 13a-14 or 15d-14 under the Exchange Act, and (B) 18 U.S.C. §1350
(Section 906 of SOX) with respect to any report referred to in clause (i) above (collectively, the “Public Certifications”).
The SEC Reports (x) were prepared in all material respects in accordance with the requirements of the Securities Act and the Exchange
Act, as the case may be, and the rules and regulations thereunder and (y) did not, as of their respective effective dates (in the case
of SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and at the time they were filed
with the SEC (in the case of all other SEC Reports) contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which
they were made, not misleading. The Public Certifications are each true as of their respective dates of filing. As used in this Section
3.6, the term “file” shall be broadly construed to include any manner permitted by SEC rules and regulations in which
a document or information is furnished, supplied or otherwise made available to the SEC. As of the date of this Agreement, (A) the Old
Purchaser Public Units, the shares of Old Purchaser Class A Common Stock and the Old Purchaser Public Warrants are listed on Nasdaq,
(B) the Purchaser has not received any written deficiency notice from Nasdaq relating to the continued listing requirements of such Old
Purchaser Securities, (C) there are no Actions pending or, to the Knowledge of the Purchaser, threatened against the Purchaser by the
Financial Industry Regulatory Authority with respect to any intention by such entity to suspend, prohibit or terminate the quoting of
such Old Purchaser Securities on Nasdaq and (D) such Purchaser Securities are in compliance with all of the applicable corporate governance
rules of Nasdaq.
(b)
The financial statements and notes of the Purchaser contained or incorporated by reference in the SEC Reports (the “Purchaser
Financials”), fairly present in all material respects the financial position and the results of operations, changes in
shareholders’ equity, and cash flows of the Purchaser at the respective dates of and for the periods referred to in such financial
statements, all in accordance with (i) GAAP methodologies applied on a consistent basis throughout the periods involved and (ii) Regulation
S-X or Regulation S-K, as applicable (except as may be indicated in the notes thereto and for the omission of notes and audit adjustments
in the case of unaudited quarterly financial statements to the extent permitted by Regulation S-X or Regulation S-K, as applicable).
(c)
Except as and to the extent reflected or reserved against in the Purchaser Financials, the Purchaser has not incurred any Liabilities
or obligations of the type required to be reflected on a balance sheet in accordance with GAAP that are not adequately reflected or reserved
on or provided for in the Purchaser Financials, other than Liabilities of the type required to be reflected on a balance sheet in accordance
with GAAP that have been incurred since the Purchaser’s formation in the ordinary course of business.
3.7.
Absence of Certain Changes. As of the Disclosure Schedule Delivery Date, except as set forth in Schedule 3.7 of the Purchaser
Disclosure Schedules, the Purchaser has, (a) since its formation, conducted no business other than its formation, the public offering
of its securities (and the related private offerings), public reporting and its search for an initial Business Combination as described
in the IPO Prospectus (including the investigation of the Company and the negotiation and execution of this Agreement) and related activities
and (b) since its formation, not been subject to a Material Adverse Effect on the Purchaser.
3.8.
Compliance with Laws. The Purchaser is, and has since its formation been, in compliance with all Laws applicable to it and the
conduct of its business except for such noncompliance which would not reasonably be expected to have a Material Adverse Effect on the
Purchaser, and the Purchaser has not received written notice alleging any violation of applicable Law in any material respect by the
Purchaser.
3.9.
Actions; Orders; Permits. There is no pending or, to the Knowledge of the Purchaser, threatened material Action to which the Purchaser
is subject which would reasonably be expected to have a Material Adverse Effect on the Purchaser. There is no material Action that the
Purchaser has pending against any other Person. The Purchaser is not subject to any material Orders of any Governmental Authority, nor
are any such Orders pending. The Purchaser holds all material Permits necessary to lawfully conduct its business as presently conducted,
and to own, lease and operate its assets and properties, all of which are in full force and effect, except where the failure to hold
such Consent or for such Consent to be in full force and effect would not reasonably be expected to have a Material Adverse Effect on
the Purchaser.
3.10.
Taxes and Returns.
(a)
Each of the Purchaser and Merger Sub have timely filed, or caused to be timely filed, all material federal, state, local, and foreign
Tax Returns required to be filed by it, which such Tax Returns are true, accurate, correct and complete in all material respects, and
has paid, collected or withheld, or caused to be paid, collected or withheld, all material Taxes required to be paid, collected or withheld,
other than such Taxes for which adequate reserves in the Purchaser Financials have been established in accordance with GAAP. Schedule
3.10(a) of the Purchaser Disclosure Schedules sets forth each jurisdiction where the Purchaser files or is required to file a Tax
Return. There are no audits, examinations, investigations or other proceedings pending against the Purchaser in respect of any Tax, and
the Purchaser has not been notified in writing of any proposed Tax claims or assessments against the Purchaser (other than, in each case,
claims or assessments for which adequate reserves in the Purchaser Financials have been established in accordance with GAAP or are immaterial
in amount). There are no Liens with respect to any Taxes upon any of the Purchaser’s assets, other than Permitted Liens. The Purchaser
has no outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes. There are no
outstanding requests by the Purchaser for any extension of time within which to file any Tax Return or within which to pay any Taxes
shown to be due on any Tax Return.
(b)
There is no Action currently pending or, to the Knowledge of the Purchaser, threatened in writing against the Purchaser by a Governmental
Authority in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(c)
Neither the Purchaser nor Merger Sub is being audited by any Tax authority or has been notified in writing or, to the Knowledge of Purchaser,
orally by any Tax authority that any such audit is contemplated or pending. There are no claims, assessments, audits, examinations, investigations
or other Actions pending against the Purchaser or Merger Sub in respect of any Tax, and neither the Purchaser nor Merger Sub have been
notified in writing of any proposed Tax claims or assessments against it (other than, in each case claims or assessments for which adequate
reserves in the Purchaser Financials have been established).
(d)
There are no Liens with respect to any Taxes upon any of Purchaser’s or Merger Sub’s assets, other than Permitted Liens.
(e)
Since the date of its formation, the Purchaser has not (i) changed any Tax accounting methods, policies or procedures except as required
by a change in Law, (ii) made, revoked, or amended any material Tax election, (iii) filed any amended Tax Returns or claim for refund
or (iv) entered into any closing agreement affecting or otherwise settled or compromised any material Tax liability or refund.
(f)
Neither the Purchaser nor Merger Sub has any outstanding waivers or extensions of any applicable statute of limitations to assess any
amount of Taxes. There are no outstanding requests by either the Purchaser or Merger Sub for any extension of time to file any Tax Returns
or within which to pay any Taxes shown to be due on any Tax Return.
(g)
The Purchaser is, and has always been, resident only in its jurisdiction of organization for Tax purposes (including its jurisdiction
of organization immediately after the Domestication) and is not and has not been, treated as having a permanent establishment, branch
or taxable presence in any jurisdiction other than in its jurisdiction of organization.
(h)
The Purchaser has not made any change in accounting methods (except as required by a change in Law) or received a ruling from, or signed
an agreement with, any taxing authority that would reasonably be expected to have a material impact on its Taxes following the Closing.
(i)
The Purchaser has no Liability or potential Liability for the Taxes of another Person that are not adequately reflected in the Purchaser
Financials (i) under any applicable Tax Law, (ii) as a transferee or successor, or (iii) by contract, indemnity or otherwise (excluding
commercial agreements entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes). Neither
the Purchaser nor Merger Sub are a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement
or similar agreement, arrangement or practice (excluding commercial agreements entered into in the ordinary course of business the primary
purpose of which is not the sharing of Taxes) with respect to Taxes (including advance pricing agreement, closing agreement or other
agreement relating to Taxes with any Governmental Authority) that will be binding on the Purchaser with respect to any period following
the Closing Date.
(j)
Neither Purchaser nor Merger Sub: (i) have constituted either a “distributing corporation” or a “controlled corporation”
(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of securities (to any Person or entity that is not a member
of the consolidated group of which the Purchaser is the common parent corporation) qualifying for, or intended to qualify for, Tax-free
treatment under Section 355 of the Code (A) within the two-year period ending on the date hereof or (B) in a distribution which could
otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e)
of the Code) in conjunction with the transactions contemplated by this Agreement; or (ii) is or has ever been (A) a U.S. real property
holding corporation within the meaning of Section 897(c)(2) of the Code, or (B) a member of any consolidated, combined, unitary or affiliated
group of corporations for any Tax purposes other than a group of which the Purchaser is or was the common parent corporation.
(k)
Purchaser and Merger Sub have not taken or agreed to take any action, and do not have any reason to believe that any conditions exist
with respect to the Purchaser or Merger Sub that would reasonably be expected to prevent, impair or impede the transactions contemplated
by this Agreement from being treated as set forth in Section 5.10. Without limiting the generality of the preceding sentence,
Merger Sub was formed solely to facilitate the transactions contemplated by this Agreement and has never had any activities, assets or
liabilities other than in connection with such transactions.
(l)
As of the effective date of the SPAC Domestication, the SPAC Domestication of the Purchaser met all applicable requirements to qualify
as a tax-free reorganization within the meaning of Section 368(a)(1)(F) of the Code.
3.11.
Employees and Employee Benefit Plans. The Purchaser (a) does not have any employees, nor has it previously had any employees,
and (b) neither currently maintains, sponsors, contributes to, or has an obligation to contribute to or otherwise has any Liability under
or with respect to any Benefit Plans, nor previously maintained, sponsored, contributed to, or had an obligation to contribute to, or
otherwise ever had any Liability under or with respect to any Benefit Plans.
3.12.
Properties. The Purchaser does not own, license or otherwise have any right, title or interest in any material Intellectual Property.
The Purchaser does not own or lease any material real property or material Personal Property.
3.13.
Material Contracts.
(a)
Except as set forth on Schedule 3.13(a) of the Purchaser Disclosure Schedules, other than this Agreement and the Ancillary Documents,
there are no Contracts to which the Purchaser is a party or by which any of its properties or assets may be bound, subject or affected,
which (i) creates or imposes a Liability greater than $100,000, (ii) may not be cancelled by the Purchaser on less than sixty (60) days’
prior notice without payment of a material penalty or termination fee or (iii) prohibits, prevents, restricts or impairs in any material
respect any business practice of the Purchaser as its business is currently conducted, any acquisition of material property by the Purchaser,
or restricts in any material respect the ability of the Purchaser to engage in business as currently conducted by it or compete with
any other Person (each, a “Purchaser Material Contract”). All Purchaser Material Contracts have been made available
to the Company.
(b)
With respect to each Purchaser Material Contract: (i) the Purchaser Material Contract was entered into at arms’ length and in the
ordinary course of business; (ii) the Purchaser Material Contract is legal, valid, binding and enforceable in all material respects against
the Purchaser and, to the Knowledge of the Purchaser, the other parties thereto, and is in full force and effect (except, in each case,
as such enforcement may be limited by the Enforceability Exceptions); (iii) the Purchaser is not in breach or default in any material
respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default
in any material respect by the Purchaser, or permit termination or acceleration by the other party, under such Purchaser Material Contract;
and (iv) to the Knowledge of the Purchaser, no other party to any Purchaser Material Contract is in breach or default in any material
respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default
by such other party, or permit termination or acceleration by the Purchaser under any Purchaser Material Contract.
3.14.
Transactions with Affiliates. Schedule 3.14 of the Purchaser Disclosure Schedules sets forth a true, correct and complete
list of the Contracts and arrangements that are in existence as of the Disclosure Schedule Delivery Date under which there are any existing
or future Liabilities or obligations between the Purchaser and any (a) present or former director, officer or employee or Affiliate of
the Purchaser, or any immediate family member of any of the foregoing, or (b) record or beneficial owner of more than five percent (5%)
of the Purchaser’s outstanding capital stock as of the date hereof.
3.15.
Merger Sub Activities. Since its formation, Merger Sub has not engaged in any business activities other than as contemplated by
this Agreement, does not own directly or indirectly any ownership, equity, profits or voting interest in any Person and has no assets
or Liabilities except those incurred in connection with this Agreement and the Ancillary Documents to which it is a party and the Transactions,
and, other than this Agreement and the Ancillary Documents to which it is a party, Merger Sub is not party to or bound by any Contract.
3.16.
Investment Company Act. 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 (the “Investment Company Act”).
3.17.
Finders and Brokers. Except as set forth on Schedule 3.17 of the Purchaser Disclosure Schedules, no broker, finder or investment
banker is entitled to any brokerage, finder’s or other fee or commission from the Purchaser, the Company or any of their respective
Affiliates in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Purchaser.
3.18.
Ownership of Merger Consideration. All shares of Purchaser Common Stock to be issued and delivered to the Company Stockholders
as Merger Consideration in accordance with Article I shall be, upon issuance and delivery of such Purchaser Common Stock, fully
paid and non-assessable, free and clear of all Liens, other than restrictions arising from applicable securities Laws, any applicable
Lock-Up Agreement, and any Liens incurred by any Company Stockholder, and the issuance and sale of such Purchaser Common Stock pursuant
to this Agreement will not be subject to or give rise to any preemptive rights or rights of first refusal.
3.19.
Certain Business Practices.
(a)
Neither the Purchaser, nor any of its Representatives acting on its behalf, has (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices
Act of 1977 or any other local or foreign anti-corruption or bribery Law, (iii) made any other unlawful payment or (iv) since the formation
of the Purchaser, directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any
customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder the Purchaser or assist it
in connection with any actual or proposed transaction.
(b)
The operations of the Purchaser are and have been conducted at all times in material compliance with money laundering statutes in all
applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any Governmental Authority, and no Action involving the Purchaser with respect to any of the foregoing is pending or,
to the Knowledge of the Purchaser, threatened.
(c)
None of the Purchaser or any of its directors or officers, or, to the Knowledge of the Purchaser, any other Representative acting on
behalf of the Purchaser is currently identified on the specially designated nationals or other blocked person list or otherwise currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”),
and the Purchaser has not, in the last five (5) fiscal years, directly or indirectly, used any funds, or loaned, contributed or otherwise
made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any
other country sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation
of, any U.S. sanctions administered by OFAC.
3.20.
Insurance. Schedule 3.20 of the Purchaser Disclosure Schedules lists all insurance policies (by policy number, insurer,
coverage period, coverage amount, annual premium and type of policy) held by the Purchaser relating to the Purchaser or its business,
properties, assets, directors, officers and employees, copies of which have been provided to the Company. All premiums due and payable
under all such insurance policies have been timely paid and the Purchaser is otherwise in material compliance with the terms of such
insurance policies. All such insurance policies are in full force and effect, and to the Knowledge of the Purchaser, there is no threatened
termination of, or material premium increase with respect to, any of such insurance policies. There have been no insurance claims made
by the Purchaser. The Purchaser has each reported to its insurers all 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 Material Adverse Effect
on the Purchaser.
3.21.
Trust Account. As of July 31, 2024, Purchaser has $6,550,736.65 in the Trust Account, and such monies are invested in “government
securities” (as such term is defined in the Investment Company Act) and held in trust by the Trustee pursuant to the Trust Agreement.
The Trust Agreement is valid and in full force and effect and enforceable in accordance with its terms and has not been amended or modified.
Purchaser has complied in all respects with the terms of the Trust Agreement and is not in breach thereof or default thereunder and there
does not exist under the Trust Agreement any event which, with the giving of notice or the lapse of time, would constitute such a breach
or default by Purchaser or, to the knowledge of Purchaser, by the Trustee. There are no separate agreements, side letters, or other agreements
or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the Purchaser’s
SEC Reports to be inaccurate in any material respect and/ or that would entitle any Person 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 except (x) to pay income and other tax obligations
from any interest income earned in the Trust Account or (y) to redeem the Purchaser Common Stock in accordance with Purchaser’s
Organizational Documents.
3.22.
Litigation. There is no (a) Action of any nature currently pending or, to Purchaser’s Knowledge, threatened, nor is there
any reasonable basis for any Action to be made (and no such Action has been brought or, to the Purchaser’s Knowledge, threatened
in the past five (5) years); or (b) Order now pending or outstanding or that was rendered by a Governmental Authority in the past five
(5) years, in either case of (a) or (b) by or against any of Purchaser, its current or former directors, officers or equity holders (provided,
that any litigation involving the directors, officers or equity holders of Purchaser must be related to Purchaser’ business, equity
securities or assets), its business, equity securities or assets. In the past five (5) years, none of the current or former officers,
senior management or directors of the Purchaser have been charged with, indicted for, arrested for, or convicted of any felony or any
crime involving fraud or been assessed any administrative fines following an investigation by a Governmental Authority.
3.23.
Independent Investigation. The Purchaser has conducted its own independent investigation, review and analysis of the business,
results of operations, prospects, condition (financial or otherwise) or assets of the Company and acknowledges that it has been provided
adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Company for such
purpose. The Purchaser acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions
contemplated hereby, it has relied solely upon its own investigation and the express representations and warranties of the Company set
forth in this Agreement (including the related portions of the Company Disclosure Schedules) and in any certificate delivered to Purchaser
pursuant to this Agreement, and the information provided by or on behalf of the Company for the Registration Statement; and (b) neither
the Company nor its respective Representatives have made any representation or warranty as to the Company, or this Agreement, except
as expressly set forth in this Agreement (including the related portions of the Company Disclosure Schedules) or in any certificate delivered
to Purchaser pursuant hereto, or with respect to the information provided by or on behalf of the Company for the Registration Statement.
Article
IV
Representations and Warranties of the Company
Except
as set forth in the disclosure schedules delivered by the Company to the Purchaser on the Disclosure Schedule Delivery Date (the “Company
Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement
to which they refer, the Company hereby represents and warrants to the Purchaser, as of the date hereof, as of the Disclosure Schedule
Delivery Date, and as of the Closing, as follows:
4.1.
Organization and Standing. The Company is a corporation duly incorporated, validly existing and in good standing under the PRGCA
and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being
conducted. The Company is duly qualified or licensed and in good standing in the jurisdiction in which it is incorporated or registered
and in each other jurisdiction where it does business or operates to the extent that the character of the property owned or leased or
operated by it or the nature of the business conducted by it makes such qualification or licensing necessary. Schedule 4.1 of
the Company Disclosure Schedules lists all jurisdictions in which the Company is qualified to conduct business and all names other than
its legal name under which the Company does business. The Company has provided to the Purchaser accurate and complete copies of its Organizational
Documents, each as amended to date and as currently in effect. A correct and complete list of the directors and officers of the Company
is set forth on Schedule 4.1 of the Company Disclosure Schedules. Except as set forth in Schedule 4.1 of the Company Disclosure
Schedules, no Person has any right to designate any director or officer of the Company. The Company is not in violation of any provision
of its Organizational Documents.
4.2.
Authorization; Binding Agreement. The Company has all requisite corporate power and authority to execute and deliver this Agreement
and each Ancillary Document to which it is or is required to be a party, to perform the Company’s obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby, subject to obtaining the Required Company Stockholder Approval. The
execution and delivery of this Agreement and each Ancillary Document to which the Company is or is required to be a party and the consummation
of the transactions contemplated hereby and thereby, (a) have been duly and validly authorized by the Company’s board of directors
in accordance with the Company’s Organizational Documents, the PRGCA, any other applicable Law or any Contract to which the Company
or any of its stockholders is a party or by which it or its securities are bound and (b) other than the Required Company Stockholder
Approval, no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement
and each Ancillary Document to which it is a party or to consummate the transactions contemplated hereby and thereby. This Agreement
has been, and each Ancillary Document to which the Company is or is required to be a party shall be when delivered, duly and validly
executed and delivered by the Company and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary
Document by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. The Company’s
board of directors, by resolutions duly adopted at a meeting duly called and held (i) determined that this Agreement and the Merger and
the other transactions contemplated hereby are advisable, fair to, and in the best interests of, the Company, its Subsidiaries and its
stockholders, (ii) approved this Agreement and the Merger and the other transactions contemplated by this Agreement in accordance with
the PRGCA, (iii) directed that this Agreement be submitted to the Company’s stockholders for approval and (iv) resolved to recommend
that the Company stockholders approve this Agreement.
4.3.
Capitalization.
(a)
The Company is authorized to issue 750,000,000 shares of Old Company Common Stock and 25,000,000 shares of Old Series A Preferred Stock.
Besides the foregoing and except for the Company warrants set forth on Schedule 4.3 (a) (each a “Company Warrant”,
and collectively, the “Company Warrants”), there are no other series or class of Old Company Stock, or other
warrants, options or rights entitling any other Person to Old Company Stock. Prior to giving effect to the transactions contemplated
by this Agreement, all of the issued and outstanding Old Company Stock and other equity interests of the Company are set forth on Schedule
4.3(a) of the Company Disclosure Schedules, along with the beneficial and record owners thereof, all of which shares and other equity
interests are owned free and clear of any Liens other than those imposed under the Company Charter. All of the outstanding shares and
other equity interests of the Company have been duly authorized, are fully paid and non-assessable and not in violation of any purchase
option, right of first refusal or first offer, preemptive right, subscription right or any similar right under any provision of the PRGCA,
any other applicable Law, the Company’s Organizational Documents or any Contract to which the Company is a party or by which it
or its securities are bound. The Company holds no shares or other equity interests of the Company in its treasury. None of the outstanding
shares or other equity interests of the Company were issued in violation of any applicable securities Laws.
(b)
Other than as set forth on Schedule 4.3(b) of the Company Disclosure Schedules, there are no convertible securities, or any preemptive
rights or rights of first refusal or first offer, nor are there any Contracts, commitments, arrangements or restrictions to which the
Company or, to the Knowledge of the Company, any of its stockholders is a party or bound relating to any equity securities of the Company,
whether or not outstanding. There are no outstanding or authorized equity appreciation, phantom equity or similar rights with respect
to the Company. Except as set forth on Schedule 4.3(b) of the Company Disclosure Schedules, there are no voting trusts, proxies,
shareholder agreements or any other agreements or understandings with respect to the voting of the Company’s equity interests.
Except as set forth in the Company’s Organizational Documents, there are no outstanding contractual obligations of the Company
to repurchase, redeem or otherwise acquire any equity interests or securities of the Company, nor has the Company granted any registration
rights to any Person with respect to the Company’s equity securities. All of the Company’s securities have been granted,
offered, sold and issued in compliance with all applicable securities Laws. Except as set forth on Schedule 4.3(b) of the Company
Disclosure Schedules, no equity interests of the Company are issuable and no rights in connection with any interests, warrants, rights,
options or other securities of the Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility
or otherwise) as a result of the consummation of the transactions contemplated by this Agreement.
(c)
Except as disclosed in the Company Financials, since its formation, the Company has not declared or paid any distribution or dividend
in respect of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interests of the Company, and the
board of directors of the Company has not authorized any of the foregoing.
4.4.
No Subsidiaries. The Company does not own or have any interest in any shares, equity or debt securities or other ownership interest
in any other Person and is not obligated to make any investment in or capital contribution to any other Person. The Company is not a
party to any Contract to acquire any shares, securities or other ownership interest in, or any other securities convertible or exchangeable
into or exercisable for capital stock of or any ownership interest in, any Person.
4.5.
Governmental Approvals. Except as otherwise described in Schedule 4.5 of the Company Disclosure Schedules, no Consent of
or with any Governmental Authority on the part of the Company is required to be obtained or made in connection with the execution, delivery
or performance by the Company of this Agreement or any Ancillary Documents or the consummation by the Company of the transactions contemplated
hereby or thereby other than (a) such filings as are expressly contemplated by this Agreement or (b) pursuant to Antitrust Laws.
4.6.
Non-Contravention. Except as otherwise described in Schedule 4.6 of the Company Disclosure Schedules, the execution and
delivery by the Company of this Agreement and each Ancillary Document to which any of the Company are or are required to be a party or
otherwise bound, and the consummation by any of the Company of the transactions contemplated hereby and thereby and compliance by any
of the Company with any of the provisions hereof and thereof, will not (a) conflict with or violate any provision of the Company’s
Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 4.5 hereof,
the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied,
conflict with or violate any Law, Order or Consent applicable to the Company or any of its properties or assets, or (c) (i) violate,
conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute
a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance
required by any of the Company under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to
make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of any of
the Company under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give
any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate
the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions
or provisions of any Company Material Contract.
4.7.
Financial Statements.
(a)
As used herein, the term “Company Financials” means the (i) audited financial statements of the Company (including,
in each case, any related notes thereto), consisting of the consolidated balance sheets of the Company as of December 31, 2022 and December
31, 2023, and the related audited income statements, changes in stockholder equity and statements of cash flows for the fiscal years
then ended (the “Audited Company Financials”), (ii) the Company prepared unaudited financial statements, consisting
of the balance sheet of the Company as of June 30, 2024 (the “Interim Balance Sheet Date”) and the related
consolidated income statement, changes in stockholder equity and statement of cash flows for the six-month (6-month) period then ended.
True and correct copies of the Company Financials have been provided to the Purchaser. The Company Financials (i) accurately reflect
the books and records of the Company as of the times and for the periods referred to therein, (ii) were prepared in accordance with GAAP,
consistently applied throughout and among the periods involved (except that the unaudited statements exclude the footnote disclosures
and other presentation items required for GAAP and exclude year-end adjustments which will not be material in amount), (iii) comply with
all applicable accounting requirements under the Securities Act and the rules and regulations of the SEC thereunder, and (iv) fairly
present in all material respects the consolidated financial position of the Company as of the respective dates thereof and the consolidated
results of the operations and cash flows of the Company for the periods indicated in accordance with GAAP. The Company has not ever been
subject to the reporting requirements of Sections 13(a) and 15(d) of the Exchange Act.
(b)
The Company maintains accurate books and records reflecting its assets and Liabilities and maintains proper and adequate internal accounting
controls that provide reasonable assurance that the following is done in accordance with GAAP: (i) the Company does not maintain any
off-the-book accounts and that the Company’s assets are used only in accordance with the Company’s management directives,
(ii) transactions are executed with management’s authorization, (iii) transactions are recorded as necessary to permit preparation
of the financial statements of the Company and to maintain accountability for the Company’s assets, (iv) access to the Company
assets is permitted only in accordance with management’s authorization, (v) the reporting of the Company assets is compared with
existing assets at regular intervals and verified for actual amounts, and (vi) accounts, notes and other receivables and inventory are
recorded accurately, and proper and adequate procedures are implemented to effect the collection of accounts, notes and other receivables
on a current and timely basis. All of the financial books and records of the Company are complete and accurate in all material respects
and have been maintained in the ordinary course consistent with past practice and in accordance with applicable Laws. The Company has
not been subject to or involved in any material fraud that involves management or other employees who have a significant role in the
internal controls over financial reporting of any of the Company. Neither the Company nor any of its Representatives has ever received
any written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods
of the Company or its internal accounting controls, including any material written complaint, allegation, assertion or claim that any
of the Company have engaged in questionable accounting or auditing practices.
(c)
The Company does not have any Indebtedness other than the Indebtedness set forth on Schedule 4.7(c) of the Company Disclosure
Schedules, which schedule sets forth the amounts (including principal and any accrued but unpaid interest or other obligations) and maturity
date with respect to such Indebtedness. Except as disclosed on Schedule 4.7(c) of the Company Disclosure Schedules, no Indebtedness
of any of the Company contain any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness
by any of the Company, or (iii) the ability of any of the Company to grant any Lien on their respective properties or assets.
(d)
Except as set forth on Schedule 4.7(d) of the Company Disclosure Schedules, the Company is not subject to any Liabilities or obligations
(whether or not required to be reflected on a balance sheet prepared in accordance with GAAP), including any off-balance sheet obligations,
except for those that are either (i) adequately reflected or reserved on or provided for in the consolidated balance sheet of the Company
and its Subsidiaries as of the Interim Balance Sheet Date contained in the Company Financials in accordance with GAAP or (ii) not material
and that were incurred after the Interim Balance Sheet Date in the ordinary course of business consistent with past practice (other than
Liabilities for breach of any Contract or violation of any Law).
(e)
All financial projections with respect to the Company that were delivered by or on behalf of the Company to the Purchaser or its Representatives
were prepared in good faith using assumptions that the Company believes to be reasonable.
(f)
All accounts, notes and other receivables, whether or not accrued, and whether or not billed, of the Company (the “Accounts
Receivable”) arose from sales actually made or services actually performed in the ordinary course of business and represent
valid obligations to the Company arising from its business. None of the Accounts Receivable are subject to any right of recourse, defense,
deduction, return of goods, counterclaim, offset, or set off on the part of the obligor in excess of any amounts reserved therefore on
the Company Financials. All of the Accounts Receivable are, to the Knowledge of the Company, fully collectible according to their terms
in amounts not less than the aggregate amounts thereof carried on the books of the Company (net of reserves) within ninety (90) days.
4.8.
Absence of Certain Changes. Except as set forth on Schedule 4.8. of the Company Disclosure Schedules, between January
1, 2024 and the date of this Agreement, the Company has conducted its business only in the ordinary course of business (except for the
execution and performance of this Agreement and the discussions, negotiations and transactions related thereto) and there has not been
any (x) Company Material Adverse Effect or (y) actions to do any of the following:
(a)
declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock; or repurchase,
redeem or otherwise reacquire any shares of its capital stock or other securities;
(b)
except as required to give effect to anything in contemplation of the Closing, amend any of its Organizational Documents, or effect or
be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split,
reverse stock split or similar transaction;
(c)
sell, issue, grant, pledge or otherwise dispose of or encumber or authorize any of the foregoing actions with respect to: (i) any capital
stock or other security of the Company, (ii) any option, warrant or right to acquire any capital stock or any other security or (iii)
any instrument convertible into or exchangeable for any capital stock or other security of the Company;
(d)
form any Subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other
entity;
(e)
(i) lend money to any Person, (ii) incur or guarantee any indebtedness for borrowed money, (iii) guarantee any debt securities of others
or (iv) make any capital expenditure or commitment;
(f)
other than as required by applicable Law or any Company Benefit Plan: (i) adopt, establish or enter into any Employee Plan, including,
for the avoidance of doubt, any equity awards plans, (ii) cause or permit any Company Benefit Plan to be amended other than as required
by law or in order to make amendments for the purposes of Section 409A of the Code, (iii) pay any bonus or make any profit-sharing or
similar payment to (except with respect to obligations in place on the date of this Agreement pursuant to any Company Benefit Plan),
or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its
directors, officers or employees, (iv) increase the severance or change of control benefits offered to any current or new employees,
directors or consultants, or (v) hire any officer, employee or consultant;
(g)
enter into any material transaction outside the ordinary course of business;
(h)
acquire any material asset or sell, lease, license or otherwise irrevocably dispose of any of its assets or properties, or grant any
encumbrance with respect to such assets or properties;
(i)
sell, assign, transfer, license, sublicense or otherwise dispose of any material Company Registered IP or Company IP Licenses (other
than pursuant to nonexclusive licenses in the ordinary course of business);
(j)
make (other than consistent with past practice), change or revoke any material Tax election; file any material amendment to any Tax Return;
settle or compromise any material Tax claim; waive or extend any statute of limitations in respect of a period within which an assessment
or reassessment of material Taxes may be issued (other than any extension pursuant to an extension to file any Tax Return); enter into
any “closing agreement” as described in Section 7121 of the Code (or any similar Law) with any Governmental Authority; or
adopt or change any material accounting method in respect of Taxes;
(k)
waive, settle or compromise any pending or threatened legal proceeding against the Company, other than waivers, settlements or agreements
(i) for an amount not in excess of $100,000 in the aggregate (excluding amounts to be paid under existing insurance policies or renewals
thereof) and (ii) that do not impose any material restrictions on the operations or businesses of the Company or any equitable relief
on, or the admission of wrongdoing by the Company;
(l)
delay or fail to repay when due any material obligation, including accounts payable and accrued expenses, other than in the ordinary
course of business;
(m)
forgive any loans to any Person, including its employees, officers, directors or Affiliate;
(n)
sell, assign, transfer, license, sublicense or otherwise dispose of any material Company IP (other than in the ordinary course of business);
(o)
terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy;
(p)
enter into, amend, terminate, or waive any material option or right under, any Company Material Contract;
(q)
(i) materially change pricing or royalties or other payments set or charged by the Company to its customers or licensees or (ii) agree
to materially change pricing or royalties or other payments set or charged by Persons who have licensed Intellectual Property to the
Company; or
(r)
agree, resolve or commit to do any of the foregoing.
4.9.
Compliance with Laws including Privacy Laws; Privacy Policies and Certain Contracts.
(a)
The Company is, and has since its formation been, in compliance with all applicable international, national, federal, provincial, state,
or local Law that relates to the offering and issuance of equity securities in any way.
(b)
Except as set forth on Schedule 4.9(b) of the Company Disclosure Schedules:
(i)
Neither the Company, nor, to the Knowledge of the Company, any officer, director, manager or employee to whom Company has given access
to Personal Data or Protected Health Information, is in material violation of any applicable Privacy Laws;
(ii)
Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company taken as a whole, to the Knowledge
of the Company, the Company has not experienced any material loss, damage or unauthorized access, use, disclosure or modification, or
breach of security of Personal Data or Protected Health Information maintained by or on behalf of the Company;
(iii)
Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company taken as a whole, to the Knowledge
of the Company, (i) no Person, including any Governmental Authority, has made any written claim or commenced any Proceeding with respect
to any violation of any Privacy Law by the Company, and (ii) the Company has not been given written notice of any criminal, civil or
administrative violation of any Privacy Law, in any case including any claim or action with respect to any loss, damage or unauthorized
access, use, disclosure, or breach of security, of Personal Data or Protected Health Information maintained by or on behalf of the Company
(including by any agent, subcontractor or vendor of the Company); and
(iv)
Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company taken as a whole, to the Knowledge
of the Company, all activities conducted by the Company with respect to any Protected Health Information or Personal Data are permitted
under the Contracts relating to or involving Personal Data or Protected Health Information.
4.10.
Company Permits. The Company (and its employees who are legally required to be licensed by a Governmental Authority in order to
perform his or her duties with respect to his or her employment with any of the Company), hold all Permits necessary to lawfully conduct
in all material respects its business as presently conducted and as currently contemplated to be conducted, and to own, lease and operate
its assets and properties (collectively, the “Company Permits”). The Company has made available to the Purchaser
true, correct and complete copies of all Company Permits, all of which Company Permits are listed on Schedule 4.10 of the Company
Disclosure Schedules. All of the Company Permits are in full force and effect, and no suspension or cancellation of any of the Company
Permits is pending or, to the Company’s Knowledge, threatened. The Company is not in violation in any material respect of the terms
of any Company Permit, and the Company has not received any written or, to the Knowledge of the Company, oral notice of any Actions relating
to the revocation or modification of any Company Permit.
4.11.
Litigation. There is no (a) Action of any nature currently pending or, to the Company’s Knowledge, threatened, nor is there
any reasonable basis for any Action to be made (and no such Action has been brought or, to the Company’s Knowledge, threatened
in the past five (5) years); or (b) Order now pending or outstanding or that was rendered by a Governmental Authority in the past five
(5) years, in either case of (a) or (b) by or against any of the Company, its current or former directors, officers or equity holders
(provided, that any litigation involving the directors, officers or equity holders of the Company must be related to the Company’
business, equity securities or assets), its business, equity securities or assets. In the past five (5) years, none of the current or
former officers, senior management or directors of the Company have been charged with, indicted for, arrested for, or convicted of any
felony or any crime involving fraud or been assessed any administrative fines following an investigation by a Governmental Authority.
4.12.
Material Contracts.
(a)
Schedule 4.12(a) of the Company Disclosure Schedules sets forth a true, correct and complete list of, and the Company has made
available to the Purchaser (including written summaries of oral Contracts), true, correct and complete copies of, each Contract (other
than Company Benefit Plans) to which the Company is a party or by which any of the Company, or any of its properties or assets are bound
or affected (each Contract required to be set forth on Schedule 4.12(a) of the Company Disclosure Schedules, a “Company
Material Contract”) that:
(i)
contains covenants that limit the ability of the Company (A) to compete in any line of business or with any Person or in any geographic
area or to sell, or provide any service or product or solicit any Person, including any non-competition covenants, employee and customer
non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (B) to purchase or acquire
an interest in any other Person;
(ii)
involves any joint venture, strategic partnership, profit-sharing, partnership, limited liability company or other similar agreement
or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(iii)
involves any agreement relating to the supply of product to, the purchase of product for, or the performance of services by or to the
Company, in each instance, which are material to the business and operations of the Company, taken as a whole;
(iv)
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;
(v)
evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of the Company having an outstanding principal
amount in excess of $25,000;
(vi)
involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess
of $25,000 (other than in the ordinary course of business consistent with past practice) or shares or other equity interests of any of
the Company or another Person;
(vii)
relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other
entity or its business or material assets or the sale of the Company, its business or material assets;
(viii)
by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Company under such Contract
or Contracts of at least $25,000 per year or $100,000 in the aggregate;
(ix)
is with any Top Customer or Top Supplier;
(x)
obligates the Company to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess
of $25,000;
(xi)
is between the Company and any director, officer, or employees of the Company (other than at-will employment arrangements with employees
entered into in the ordinary course of business consistent with past practice), including all non-competition, severance and indemnification
agreements;
(xii)
obligates the Company to make any capital commitment or expenditure in excess of $25,000 (including pursuant to any joint venture);
(xiii)
relates to a material settlement entered into within three (3) years prior to the date of this Agreement or under which any of the Company
have outstanding obligations (other than customary confidentiality obligations);
(xiv)
provides another Person (other than any of the Company or any manager, director or officer of any of the Company) with a power of attorney;
(xv)
relates to the development, ownership, licensing or use of any Intellectual Property by, to or from any of the Company, other than Off-the-Shelf
Software;
(xvi)
that will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to
be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities
Act as if the Company was the registrant; or
(xvii)
is otherwise material to the Company and not described in clauses (i) through (xvi) above.
(b)
Except as disclosed in Schedule 4.12(b) of the Company Disclosure Schedules, with respect to each Company Material Contract: (i)
such Company Material Contract is valid and binding and enforceable in all respects against the Company and, to the Knowledge of the
Company, each other party thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability
Exceptions); (ii) the consummation of the transactions contemplated by this Agreement will not affect the validity or enforceability
of any Company Material Contract; (iii) the Company is not in breach or default in any material respect, and no event has occurred that
with the passage of time or giving of notice or both would constitute a material breach or default by the Company, or permit termination
or acceleration by the other party thereto, under such Company Material Contract; (iv) to the Knowledge of the Company, no other party
to such Company Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of
time or giving of notice or both would constitute such a material breach or default by such other party, or permit termination or acceleration
by any of the Company, under such Company Material Contract; (v) the Company has not received written or, to the Knowledge of the Company,
oral notice of an intention by any party to any such Company Material Contract that provides for a continuing obligation by any party
thereto to terminate such Company Material Contract or amend the terms thereof, other than modifications in the ordinary course of business
that do not adversely affect any of the Company in any material respect; and (vi) the Company has not waived any rights under any such
Company Material Contract.
4.13.
Intellectual Property.
(a)
Schedule 4.13(a)(i) of the Company Disclosure Schedules sets forth: (i) all U.S. and foreign registered Patents, Trademarks, Copyrights
and Internet Assets and applications owned or licensed by the Company or otherwise used or held for use by the Company, or the Company
is the applicant or assignee (“Company Registered IP”), specifying as to each item, as applicable and to the
extent available to the Company: (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; and (ii) all material unregistered Intellectual Property owned or purported to be owned by the Company.
Schedule 4.13(a)(ii) of the Company Disclosure Schedules sets forth all Intellectual Property licenses, sublicenses and other
agreements or permissions (“Company IP Licenses”) (other than “shrink wrap,” “click wrap,”
and “off the shelf” software agreements and other agreements for Software commercially available on reasonable terms to the
public generally with license, maintenance, support and other fees of less than $20,000 per year (collectively, “Off-the-Shelf
Software”), which are not required to be listed, although such licenses are “Company IP Licenses” as that term
is used herein), under which the Company is a licensee or otherwise is authorized to use or practice any Intellectual Property, and describes
(A) the applicable Intellectual Property licensed, sublicensed or used and (B) any royalties, license fees or other compensation due
from the Company, if any. The Company owns, free and clear of all Liens (other than Permitted Liens), has valid and enforceable rights
in, and has the unrestricted right to use, sell, license, transfer or assign, all Intellectual Property currently used, licensed or held
for use by the Company, and previously used or licensed by the Company, except for the Intellectual Property that is the subject of the
Company IP Licenses. No item of Company Registered IP that consists of a pending Patent application fails to identify all pertinent inventors,
and for each Patent and Patent application in the Company Registered IP, the Company has obtained valid assignments of inventions from
each inventor. Except as set forth on Schedule 4.13(a)(iii) of the Company Disclosure Schedules, all Company Registered IP is
owned exclusively by the 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 Company has recorded assignments of all Company Registered IP.
(b)
The Company has a valid and enforceable license to use all Intellectual Property that is the subject of the Company IP Licenses applicable
to the Company. The Company IP Licenses include all of the licenses, sublicenses and other agreements or permissions necessary to operate
the Company as presently conducted. The Company has performed all obligations imposed on it in the Company IP Licenses, has made all
payments required to date, and the Company is not, nor, to the Knowledge of the Company, is any other party thereto, in breach or default
thereunder, nor has any event occurred that with notice or lapse of time or both would constitute a default thereunder. The continued
use by the Company of the Intellectual Property that is the subject of the Company IP Licenses in the same manner that it is currently
being used is not restricted by any applicable license of the Company. All registrations for Copyrights, Patents, Trademarks and Internet
Assets that are owned by or exclusively licensed to the Company are valid, in force and in good standing with all required fees and maintenance
fees having been paid with no Actions pending, and all applications to register any Copyrights, Patents and Trademarks are pending and
in good standing, all without challenge of any kind. The Company is not party to any Contract that requires the Company to assign to
any Person all of its rights in any Intellectual Property developed by the Company under such Contract.
(c)
Schedule 4.13(c) of the Company Disclosure Schedules sets forth all licenses, sublicenses and other agreements or permissions
under which any of the Company is the licensor (each, an “Outbound IP License”), and for each such Outbound
IP License, describes (i) the applicable Intellectual Property licensed, (ii) the licensee under such Outbound IP License, and (iii)
any royalties, license fees or other compensation due to the Company, if any. The Company has performed all obligations imposed on it
in the Outbound IP Licenses, and the Company is not, nor, to the Knowledge of the Company, is any other party thereto, in breach or default
thereunder, nor has any event occurred that with notice or lapse of time or both would constitute a default thereunder.
(d)
No Action is pending or, to the Company’s Knowledge, threatened against the Company that challenges the validity, enforceability,
ownership, or right to use, sell, license or sublicense, or that otherwise relates to, any Intellectual Property currently owned, licensed,
used or held for use by the Company, nor, to the Knowledge of the Company, is there any reasonable basis for any such Action. The Company
has not received any written or, to the Knowledge of the Company, oral notice or claim asserting or suggesting that any infringement,
misappropriation, violation, dilution or unauthorized use of the Intellectual Property of any other Person is or may be occurring or
has or may have occurred, as a consequence of the business activities of any of the Company, nor to the Knowledge of the Company is there
a reasonable basis therefor. There are no Orders to which the Company is a party or its otherwise bound that (i) restrict the rights
of the Company to use, transfer, license or enforce any Intellectual Property owned by any of the Company, (ii) restrict the conduct
of the business of the Company in order to accommodate a third Person’s Intellectual Property, or (iii) other than the Outbound
IP Licenses, grant any third Person any right with respect to any Intellectual Property owned by any of the Company. The Company is not
currently infringing, nor 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 Intellectual Property owned or purported to be owned by the
Company or, to the Knowledge of the Company, otherwise in connection with the conduct of the respective businesses of the Company. To
the Company’s Knowledge, no third party is currently, or in the past five (5) years has been, infringing upon, misappropriating
or otherwise violating any Intellectual Property owned, licensed by, licensed to, or otherwise used or held for use by any of the Company
(“Company IP”) in any material respect.
(e)
Except as set forth in Schedule 4.13(e) of the Company Disclosure Schedules, all officers, directors, employees and independent
contractors of any of the Company (and each of their respective Affiliates) have assigned to the Company all Intellectual Property arising
from the services performed for any of the Company by such Persons and all such assignments of Company Registered IP have been recorded.
Except as set forth in Schedule 4.13(e) of the Company Disclosure Schedules, no current or former officers, employees or independent
contractors of any of the Company have claimed any ownership interest in any Intellectual Property owned by any of the Company. To the
Knowledge of the Company, there has been no violation of the Company policies or practices related to protection of Company IP or any
confidentiality or nondisclosure Contract relating to the Intellectual Property owned by any of the Company. The Company has made available
to the Purchaser true and complete copies of all written Contracts referenced in subsections under which employees and independent contractors
assigned their Intellectual Property to the Company. To the Company’s Knowledge, none of the employees of any of the Company are
obligated under any Contract, or subject to any Order, that would materially interfere with the use of such employee’s best efforts
to promote the interests of the Company, or that would materially conflict with the business of any of the Company as presently conducted
or contemplated to be conducted. The Company has taken reasonable security measures in order to protect the secrecy, confidentiality
and value of the material Company IP.
(f)
To the Knowledge of the Company, no Person has obtained unauthorized access to third party information and data (including personally
identifiable information) in the possession of the Company, nor has there been any other material compromise of the security, confidentiality
or integrity of such information or data, and no written or, to the Knowledge of the Company, oral complaint relating to an improper
use or disclosure of, or a breach in the security of, any such information or data has been received by the Company. The Company has
complied in all material respects with all applicable Laws and Contract requirements relating to privacy, personal data protection, and
the collection, processing and use of personal information and its own privacy policies and guidelines. The operation of the business
of the Company has not and does not violate any right to privacy or publicity of any third person or constitute unfair competition or
trade practices under applicable Law.
(g)
Except as set forth in Schedule 4.13(g) of the Company Disclosure Schedules, the consummation of any of the transactions contemplated
by this Agreement will not result in the material breach, material modification, cancellation, termination, suspension of, or acceleration
of any payments with respect to, or release of source code because of (i) any Contract providing for the license or other use of Intellectual
Property owned by the Company, or (ii) any Company IP License. Following the Closing, the Company shall be permitted to exercise, directly
or indirectly through its Subsidiaries, all of the Company’ rights under such Contracts or Company IP Licenses to the same extent
that the Company would have been able to exercise had the transactions contemplated by this Agreement not occurred, without the payment
of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required
to pay in the absence of such transactions.
(h)
Schedule 4.13(h) of the Company Disclosure Schedules contains a correct, current, and complete list of all social media accounts
used in the Company’s business. The Company has complied with all terms of use, terms of service, and other Contracts and all associated
policies and guidelines relating to its use of any social media platforms, sites, or services (collectively, “Platform Agreements”).
There are no Actions, whether settled, pending, or threatened, alleging any (A) breach or other violation of any Platform Agreement by
the Company; or (B) defamation, violation of publicity rights of any Person, or any other violation by the Company in connection with
its use of social media.
(i)
All of the Company IT Systems are in good working condition and are sufficient for the operation of the Company’s business as currently
conducted and as proposed to be conducted. In the past five (5) years, there has been no malfunction, failure, continued substandard
performance, denial-of-service, or other cyber incident, including any cyberattack, or other impairment of the Company IT Systems that
has resulted or is reasonably likely to result in disruption or damage to the business of any of the Company. The Company has taken all
commercially reasonable steps to safeguard the confidentiality, availability, security, and integrity of the Company IT Systems, including
implementing and maintaining appropriate backup, disaster recovery, and Software and hardware support arrangements.
4.14.
Taxes and Returns.
(a)
The Company has or will have timely filed, or caused to be timely filed, all federal, state, local and foreign Tax Returns required to
be filed by it (taking into account all available extensions), which Tax Returns are true, accurate, correct and complete in all material
respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all Taxes required to be paid, collected
or withheld, other than such Taxes for which adequate reserves in the Company Financials have been established. The Company has complied
with all applicable Laws relating to Tax.
(b)
There is no Action currently pending or, to the Knowledge of the Company, threatened against any of the Company by a Governmental Authority
in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(c)
The Company is not being audited by any Tax authority nor has it been notified in writing or, to the Knowledge of the Company, orally
by any Tax authority that any such audit is contemplated or pending. There are no claims, assessments, audits, examinations, investigations
or other Actions pending against the Company in respect of any Tax, and the Company has not been notified in writing of any proposed
Tax claims or assessments against it (other than, in each case, claims or assessments for which adequate reserves in the Company Financials
have been established).
(d)
There are no Liens with respect to any Taxes upon any of the Company’ assets, other than Permitted Liens.
(e)
The Company has collected or withheld all Taxes currently required to be collected or withheld by it, and all such Taxes have been paid
to the appropriate Governmental Authorities or set aside in appropriate accounts for future payment when due.
(f)
The Company has no outstanding waivers or extensions of any applicable statute of limitations to assess any amount of Taxes. There are
no outstanding requests by any of the Company for any extension of time within which to file any Tax Return or within which to pay any
Taxes shown to be due on any Tax Return.
(g)
The Company has not made any change in accounting method (except as required by a change in Law) or received a ruling from, or signed
an agreement with, any taxing authority that would reasonably be expected to have a material impact on its Taxes following the Closing.
(h)
The Company has not participated in, or sold, distributed or otherwise promoted, any “reportable transaction,” as defined
in U.S. Treasury Regulation Section 1.6011-4.
(i)
The Company has no Liability or potential Liability for the Taxes of another Person that are not adequately reflected in the Company
Financials (i) under any applicable Tax Law, (ii) as a transferee or successor, or (iii) by contract, indemnity or otherwise (excluding
commercial agreements entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes). The
Company is not a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement,
arrangement or practice (excluding commercial agreements entered into in the ordinary course of business the primary purpose of which
is not the sharing of Taxes) with respect to Taxes (including advance pricing agreement, closing agreement or other agreement relating
to Taxes with any Governmental Authority) that will be binding on any of the Company with respect to any period following the Closing
Date.
(j)
The Company has not requested or is 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 outstanding.
(k)
The Company: (i) has not constituted either a “distributing corporation” or a “controlled corporation” (within
the meaning of Section 355(a)(1)(A) of the Code) in a distribution of securities (to any Person or entity that is not a member of the
consolidated group of which the Company is the common parent corporation) qualifying for, or intended to qualify for, Tax-free treatment
under Section 355 of the Code (A) within the two-year period ending on the date hereof or (B) in a distribution which could otherwise
constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the
Code) in conjunction with the transactions contemplated by this Agreement; or (ii) is not and has never been (A) a U.S. real property
holding corporation within the meaning of Section 897(c)(2) of the Code, or (B) a member of any consolidated, combined, unitary or affiliated
group of corporations for any Tax purposes other than a group of which the Company is or was the common parent corporation.
(l)
The Company is not aware of any fact or circumstance that would reasonably be expected to prevent the Merger from qualifying as a “reorganization”
within the meaning of Section 368(a) of the Code.
4.15.
Real Property. Schedule 4.15 of the Company Disclosure Schedules contains a complete and accurate list of all premises
currently leased or subleased or otherwise used or occupied by the Company for the operation of the business of the Company, and of all
current leases, lease guarantees, agreements and documents related thereto, including all amendments, terminations and modifications
thereof or waivers thereto (collectively, the “Company Real Property Leases”), as well as the current annual
rent and term under each Company Real Property Lease. The Company has provided to the Purchaser a true and complete copy of each of the
Company Real Property Leases, and in the case of any oral Company Real Property Lease, a written summary of the material terms of such
Company Real Property Lease. The Company Real Property Leases are valid, binding and enforceable in accordance with their terms and are
in full force and effect. To the Knowledge of the Company, no event has occurred which (whether with or without notice, lapse of time
or both or the happening or occurrence of any other event) would constitute a default on the part of the Company or any other party under
any of the Company Real Property Leases, and the Company has not received notice of any such condition. The Company does not own and
have never owned any real property or any interest in real property (other than the leasehold interests in the Company Real Property
Leases). The Company owns no real property.
4.16.
Personal Property. Each item of Personal Property which is currently owned, used or leased by any of the Company with a book value
or fair market value of greater than Ten Thousand Dollars ($10,000) is set forth on Schedule 4.16 of the Company Disclosure Schedules,
along with, to the extent applicable, a list of lease agreements, lease guarantees, security agreements and other agreements related
thereto, including all amendments, terminations and modifications thereof or waivers thereto (“Company Personal Property
Leases”). Except as set forth in Schedule 4.16 of the Company Disclosure Schedules, all such items of Personal Property
are in good operating condition and repair (reasonable wear and tear excepted consistent with the age of such items), and are suitable
for their intended use in the business of the Company. The operation of the Company’s business as it is now conducted or presently
proposed to be conducted is not dependent upon the right to use the Personal Property of Persons other than any of the Company, except
for such Personal Property that is owned, leased or licensed by or otherwise contracted to any of the Company. The Company has provided
to the Purchaser a true and complete copy of each of the Company Personal Property Leases, and in the case of any oral Company Personal
Property Lease, a written summary of the material terms of such Company Personal Property Lease. The Company Personal Property Leases
are valid, binding and enforceable in accordance with their terms and are in full force and effect. To the Knowledge of the Company,
no event has occurred which (whether with or without notice, lapse of time or both or the happening or occurrence of any other event)
would constitute a default on the part of the Company or any other party under any of the Company Personal Property Leases, and the Company
has not received notice of any such condition.
4.17.
Title to and Sufficiency of Assets. The Company has good and marketable title to, or a valid leasehold interest in or right to
use, all of its assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under leasehold interests,
(c) Liens specifically identified on the balance sheet as of the Interim Balance Sheet Date included in the Company Financials and (d)
Liens set forth on Schedule 4.17 of the Company Disclosure Schedules. The assets (including Intellectual Property rights and contractual
rights) of the Company constitute all of the assets, rights and properties that are used in the operation of the businesses of the Company
as it is now conducted.
4.18.
Employee Matters.
(a)
Except as set forth in Schedule 4.18(a) of the Company Disclosure Schedules, the Company is not a party to any collective bargaining
agreement or other Contract with a labor organization or other representative of a group of employees of the Company, and the Company
has no Knowledge of any activities or proceedings of any labor union or other party to organize or represent such employees. There has
not occurred or, to the Knowledge of the Company, been threatened any strike, slow-down, picketing, work-stoppage, or other similar group
labor activity with respect to any such employees, consultant, independent contractor, officer, or manager of the Company. Schedule
4.18(a) of the Company Disclosure Schedules sets forth all unresolved labor controversies (including unresolved grievances and age
or other discrimination claims), if any, that are pending or, to the Knowledge of the Company, threatened between any of the Company
and Persons employed by or by individuals providing services as independent contractors to the Company. No current officer of the Company
has provided the Company written or, to the Knowledge of the Company, oral notice of his or her plan to go on a leave of absence or terminate
his or her employment with the Company.
(b)
Except as set forth in Schedule 4.18(b) of the Company Disclosure Schedules, the Company (i) is and has been in compliance in
all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, health
and safety and wages and hours, and other Laws relating to discrimination, sexual harassment, disability, labor relations, classification
and payment of employees and independent contractors, hours of work, payment of wages and overtime wages, pay equity, immigration, workers
compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave, and employee terminations
(collectively, “Employment Laws”), and has not received written or, to the Knowledge of the Company, oral notice
that there is any pending Action involving unfair labor practices against the Company, (ii) is not liable for any material past due arrears
of wages (including any deferred salary) or any material penalty for failure to pay wages past due, and (iii) is not liable for any material
payment to any Governmental Authority with respect to unemployment compensation benefits, social security or other benefits or obligations
for employees, individual independent contractors or individual consultants (other than routine payments to be made in the ordinary course
of business and consistent with past practice). There are no Actions pending or, to the Knowledge of the Company, threatened against
any of the Company brought by or on behalf of any applicant for employment, any current or former employee, any Person alleging to be
a current or former employee, or any Governmental Authority, relating to Employment Laws, or alleging breach of any express or implied
contract of employment, or wrongful termination of employment, or alleging any other discriminatory or tortious conduct in connection
with the employment relationship.
(c)
Schedule 4.18(c) of the Company Disclosure Schedules sets forth a complete and accurate list as of a date not more than five (5)
days prior to the date hereof of all employees of the Company, showing for each as of such date (i) the employee’s name, job title
or description, employing entity, primary work location, and base salary or wage rate, and (ii) any bonus, commission or other cash remuneration
other than salary paid during the fiscal year ended December 31, 2023. Except as set forth on Schedule 4.18(c) of the Company
Disclosure Schedules, (A) no employee is a party to a written employment Contract with the Company and each is employed “at will”,
and (B) to the Knowledge of the Company, it has paid in full to all Company employees all wages, salaries, commission, bonuses and other
compensation due to Company employees, including overtime compensation, and the Company does not have any overdue obligation or Liability
(whether or not contingent) with respect to severance payments to any such employees under the terms of any written or, to the Company’s
Knowledge, oral Contract. Except as set forth in Schedule 4.18(c) of the Company Disclosure Schedules, the employees of the Company
have entered into the Company’s standard form of employee non-disclosure, inventions and restrictive covenants agreement (whether
pursuant to a separate agreement or incorporated as part of such employee’s overall employment agreement), a copy of which has
been made available to the Purchaser by the Company.
(d)
Schedule 4.18(d) of the Company Disclosure Schedules contains a list of all independent contractors currently engaged by the Company
who received in the last twelve (12) months, or are entitled to receive in the next twelve (12) months, more than $60,000 in cash compensation
from the Company, along with the position, the entity engaging such Person, date of retention and rate of remuneration, for each such
Person. Except as set forth on Schedule 4.18(d) of the Company Disclosure Schedules, all of such independent contractors are a
party to a written Contract with any of the Company. Except as set forth on Schedule 4.18(d) of the Company Disclosure Schedules,
each such independent contractor has entered into customary covenants regarding confidentiality, non-competition and assignment of inventions
and copyrights with the Company, a copy of which has been provided to the Purchaser by the Company. For the purposes of applicable Law,
all independent contractors who are currently or within the last three (3) years have been engaged by the Company are bona fide independent
contractors and not employees of the Company. Each independent contractor is terminable by the Company on fewer than thirty (30) days’
notice, without any obligation of the Company to pay severance, a termination fee or a similar obligation.
4.19.
Benefit Plans.
(a)
Set forth on Schedule 4.19 of the Company Disclosure Schedules is a true and complete list of each material Company Benefit Plan
of the Company as of the date hereof.
(b)
Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company taken as a whole, each Company Benefit
Plan is and has been operated, in all material respects, in compliance with its terms and all applicable Laws, 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 (or is based on a prototype or volume submitter plan which has received a favorable opinion
letter) during the period from its adoption to the date of this Agreement, and to the Company’s Knowledge, no fact exists which
would reasonably be likely to adversely affect the qualified status of such Company Benefit Plans.
(c)
With respect to each material Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary
thereof) of the Company, the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) the text of the Company
Benefit Plan 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 most recent Form 5500, if applicable, and annual
report, including all schedules thereto; (iv) the most recent nondiscrimination testing report; (v) the most recent determination letter
received from the IRS, if any; (vi) the most recent actuarial valuation; and (vii) all material communications in the past three (3)
years with any Governmental Authority (excluding routine filing of reports).
(d)
Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company taken as a whole, with respect to
each Company Benefit Plan: (i) no Action is pending, or to the Company’s Knowledge, threatened (other than routine claims for benefits);
(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 material contributions and premiums due through the Closing
Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company
Financials.
(e)
No Company Benefit Plan is a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan”
(as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company
has not incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA.
(f)
Except as set forth in Schedule 4.19(f) of the Company Disclosure Schedules, there is no arrangement under any Company Benefit
Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280G of the Code would
not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or
otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g)
Except as set forth in Schedule 4.19(g) of the Company Disclosure Schedules, the consummation of the transactions contemplated
by this Agreement and the Ancillary Documents will not: (i) entitle any employee of the Company to severance pay, unemployment compensation
or other benefits or compensation; or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due,
or in respect of, any employee of the Company.
(h)
Except to the extent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits
to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement
or other termination of employment or service.
4.20.
Environmental Matters. Except as set forth in Schedule 4.20 of the Company Disclosure Schedules:
(a)
The Company is and has been in compliance in all material respects with all applicable Environmental Laws, including obtaining, maintaining
in good standing, and complying in all material respects with all Permits required for its business and operations by Environmental Laws
(“Environmental Permits”), no Action is pending or, to the Company’s Knowledge, threatened to revoke,
modify, or terminate any such Environmental Permit, and, to the Company’s Knowledge, no facts, circumstances, or conditions currently
exist that could adversely affect such continued compliance with Environmental Laws and Environmental Permits or require capital expenditures
to achieve or maintain such continued compliance with Environmental Laws and Environmental Permits.
(b)
The Company is not the subject of any outstanding Order or Contract with any Governmental Authority or other Person in respect of any
(i) Environmental Laws, (ii) Remedial Action, or (iii) Release or threatened Release of a Hazardous Material. The Company has not assumed,
contractually or by operation of Law, any Liabilities or obligations under any Environmental Laws.
(c)
No Action has been made or is pending, or to the Company’s Knowledge, threatened against the Company or any assets of the Company
alleging either or both that the Company may be in material violation of any Environmental Law or Environmental Permit or may have any
material Liability under any Environmental Law.
(d)
The Company has not manufactured, treated, stored, disposed of, arranged for or permitted the disposal of, generated, handled or Released
any Hazardous Material, or owned or operated any property or facility, in a manner that has given or would reasonably be expected to
give rise to any material Liability or obligation under applicable Environmental Laws. No fact, circumstance, or condition exists in
respect of the Company, or any property currently or formerly owned, operated, or leased by the Company or any property to which the
Company arranged for the disposal or treatment of Hazardous Materials that could reasonably be expected to result in the Company incurring
any material Environmental Liabilities.
(e)
There is no investigation of the business, operations, or currently owned, operated, or leased property of the Company or, to the Company’s
Knowledge, previously owned, operated, or leased property of the Company pending or, to the Company’s Knowledge, threatened that
could lead to the imposition of any Liens under any Environmental Law or Environmental Liabilities.
(f)
To the Knowledge of the Company, there is not located at any of the properties of the Company any (i) underground storage tanks, (ii)
asbestos-containing material, or (iii) equipment containing polychlorinated biphenyls.
(g)
The Company has provided to the Purchaser all environmentally related site assessments, audits, studies, reports, analysis and results
of investigations that have been performed in respect of the currently or previously owned, leased, or operated properties of the Company.
4.21.
Transactions with Related Persons. Except as set forth on Schedule 4.21 of the Company Disclosure Schedules, neither the
Company nor any of its Affiliates, nor any officer, director, or beneficial owner of 5% or more of the equity of the Company, manager,
employee, trustee or beneficiary of the Company or any of its Affiliates, nor any immediate family member of any of the foregoing (whether
directly or indirectly through an Affiliate of such Person) (each of the foregoing, a “Related Person”) is
presently, or in the past three (3) years, has been, a party to any transaction with the Company, including any Contract or other arrangement
(a) providing for the furnishing of services by (other than as officers, directors or employees of the Company), (b) providing for the
rental of real property or Personal Property or the license of Intellectual Property from, (c) granting or receiving any right or interest
in any asset of the Company to or from, or (d) otherwise requiring payments to (other than for services or expenses as directors, officers
or employees of the Company in the ordinary course of business consistent with past practice) any Related Person or any Person in which
any Related Person has an interest as an owner, officer, manager, director, trustee or partner or in which any Related Person has any
direct or indirect interest (other than the ownership of securities representing no more than two percent (2%) of the outstanding voting
power or economic interest of a publicly traded company). Except as set forth on Schedule 4.21 of the Company Disclosure Schedules,
the Company does not have outstanding any Contract or other arrangement or commitment with any Related Person, and no Related Person
owns any real property or Personal Property, or right, tangible or intangible (including Intellectual Property) which is used in the
business of the Company. The assets of the Company do not include any receivable or other obligation from a Related Person, and the liabilities
of the Company do not include any payable or other obligation or commitment to any Related Person.
4.22.
Insurance.
(a)
Schedule 4.22(a) of the Company Disclosure Schedules lists all insurance policies (by policy number, insurer, coverage period,
coverage amount, annual premium and type of policy) held by the Company relating to the Company or its business, properties, assets,
directors, officers and employees, copies of which have been provided to the Purchaser. All premiums due and payable under all such insurance
policies have been timely paid and the Company is otherwise in material compliance with the terms of such insurance policies. Each such
insurance policy (i) is legal, valid, binding, enforceable and in full force and effect and (ii) will continue to be legal, valid, binding,
enforceable, and in full force and effect on identical terms following the Closing. To the Knowledge of the Company, there is no threatened
termination of, or material premium increase with respect to, the Company’s insurance policies. The Company has no self-insurance
or co-insurance programs. In the past five (5) years, the Company has not received any notice from, or on behalf of, any insurance carrier
relating to or involving any adverse change or any 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)
Schedule 4.22(b) of the Company Disclosure Schedules identifies each individual insurance claim in excess of $25,000 made by any
of the Company in the past five (5) years. The Company has reported to its insurers all claims and pending circumstances that would reasonably
be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to be material to the
Company. To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would reasonably be expected
to (with or without notice or lapse of time) give rise to or serve as a basis for the denial of any such insurance claim. The Company
has not made any claim against an insurance policy as to which the insurer is denying coverage.
4.23.
Books and Records. All of the financial books and records of the Company are complete and accurate in all material respects and
have been maintained in the ordinary course consistent with past practice and in accordance with applicable Laws.
4.24.
Top Customers and Suppliers. Schedule 4.24 of the Company Disclosure Schedules lists, by dollar volume received or paid,
as applicable, for each of (a) the twelve (12) months ended on December 31, 2023 and (b) the period from January 1, 2024 through the
Interim Balance Sheet Date, the ten (10) largest customers of the Company (the “Top Customers”) and the ten
(10) largest suppliers of goods or services to the Company (the “Top Suppliers”), along with the amounts of
such dollar volumes. The relationships of the Company with such suppliers and customers are good commercial working relationships and
(i) no Top Supplier or Top Customer within the last twelve (12) months has materially modified (in a negative way), cancelled or otherwise
terminated, or, to the Company’s Knowledge, intends to materially modify (in a negative way), cancel or otherwise terminate, any
material relationships of such Person with the Company, (ii) no Top Supplier or Top Customer has during the last twelve (12) months decreased
materially or, to the Company’s Knowledge, threatened to stop, decrease or limit materially, or intends to modify materially its
material relationships with any of the Company or intends to stop, decrease or limit materially its products or services to any of the
Company or its usage or purchase of the products or services of any of the Company, (iii) to the Company’s Knowledge, no Top Supplier
or Top Customer intends to refuse to pay any amount due to the Company or seek to exercise any remedy against any of the Company, (iv)
the Company has not within the past two (2) years been engaged in any material dispute with any Top Supplier or Top Customer, and (v)
to the Company’s Knowledge, the consummation of the transactions contemplated in this Agreement and the Ancillary Documents will
not adversely affect the relationship of any of the Company with any Top Supplier or Top Customer.
4.25.
Certain Business Practices.
(a)
Neither the Company, nor any of its Representatives acting on their behalf have (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices
Act of 1977 or any other local or foreign anti-corruption or bribery Law or (iii) made any other unlawful payment. Neither the Company,
nor any of its respective Representatives acting on their behalf has directly or indirectly, given or agreed to give any unlawful gift
or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position
to help or hinder any of the Company or assist any of the Company in connection with any actual or proposed transaction.
(b)
The operations of the Company are and have been conducted at all times in compliance with money laundering statutes in all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any Governmental Authority, and no Action involving any of the Company with respect to any of the foregoing is pending
or, to the Knowledge of the Company, threatened.
(c)
Neither the Company nor any of its respective directors or officers, or, to the Knowledge of the Company, any other Representative acting
on behalf of any of the Company are currently identified on the specially designated nationals or other blocked person list or otherwise
currently subject to any U.S. sanctions administered by OFAC, and the Company has not in the last five (5) fiscal years, directly or
indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner or
other Person, in connection with any sales or operations in Cuba, Iran, Syria, Sudan, Myanmar or any other country sanctioned by OFAC
or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered
by OFAC.
4.26.
Compliance with FDA Laws
(a)
Except as set forth on Schedule 4.26(a) of the Company Disclosure Schedules:
(i)
the Company, including the conduct of its business, is and has been at all times during the past three (3) years in compliance with all
applicable FDA Laws, except where non-compliance would not reasonably be expected to have a Material Adverse Effect on the Company taken
as a whole;
(ii)
the Company holds, and is operating in compliance in all material respects with, all Permits of the FDA and other foreign, federal, state
and local regulatory authorities required for the lawful conduct of its business as currently conducted, including, but not limited to,
INDs;
(iii)
all data, information and representations contained in any submission to, or communications with, the FDA or other foreign regulatory
authorities were accurate, truthful and non-misleading in all material respects when submitted or communicated to the FDA or other foreign
regulatory authorities (or were corrected in or supplemented by a subsequent submission or communication) and, to the Knowledge of the
Company, remain so currently;
(iv)
no Company clinical study or clinical trial has been terminated or suspended by the FDA or any other applicable Governmental Authority
or Institutional Review Board, and neither the FDA nor any other applicable Governmental Authority has commenced or threatened to initiate
any clinical hold order on, or otherwise terminate, delay, suspend or materially restrict, any proposed or ongoing clinical study or
clinical trial;
(v)
for the past three (3) years, the Company has developed, designed, tested, studied, processed, manufactured, labeled, stored, handled,
packaged, imported, exported, and distributed the Company pipeline products and services in compliance in all material respects with
all applicable FDA Laws. For the past three (3) years, the Company has not received, and to the Knowledge of the Company, there is no
pending civil, criminal or administrative action, suit, demand, claim, complaint, hearing, investigation, demand letter, Warning Letter,
untitled letter, It Has Come To Our Attention Letter from the FDA or any Governmental Authority concerning material noncompliance with
FDA Laws with regard to the Company or Company pipeline products or services; and
(vi)
neither the Company nor, to the Knowledge of the Company, any of its Affiliates, officers, directors, or employees has, in the past six
(6) years: (i) been debarred, excluded or received notice of action or threat of action with respect to debarment, exclusion or other
action under the provisions of 21 U.S.C. §§ 335a, 335b, or 335c, 42 U.S.C. § 1320a-7 or any equivalent provisions in any
other applicable jurisdiction; (ii) made or offered any payment, gratuity or other thing of value that is prohibited by any Law to personnel
of the FDA or any other Governmental Authority; nor (iii) made an untrue statement of a material fact or material fraudulent statement
to the FDA or other Governmental Authority, failed to disclose a material fact required to be disclosed to the FDA or any other Governmental
Authority, or in any records and documentation prepared or maintained to comply with applicable Laws, or committed any act, made any
statement, or failed to make any statement that, at the time of such disclosure in the foregoing in this subsection, could reasonably
be expected to provide a basis for the FDA or any other Governmental Authority to invoke its policy respecting “Fraud, Untrue Statements
of Material Facts, Bribery, and Illegal Gratuities” set forth in 56 Fed. Reg. 46191 (September 10, 1991) or any similar policy.
4.27.
Investment Company Act. The Company is not an “investment company” or a Person directly or indirectly “controlled”
by or acting on behalf of an “investment company” or required to register as an “investment company”, in each
case within the meaning of the Investment Company Act of 1940, as amended.
4.28.
Finders and Brokers. Except as set forth in Schedule 4.28 of the Company Disclosure Schedules, the Company has not incurred
or will incur any Liability for any brokerage, finder’s or other fee or commission in connection with the transactions contemplated
hereby.
4.29.
Independent Investigation. The Company has conducted its own independent investigation, review and analysis of the business, results
of operations, prospects, condition (financial or otherwise) or assets of the Purchaser and acknowledges that it has been provided adequate
access to the personnel, properties, assets, premises, books and records, and other documents and data of the Purchaser for such purpose.
The Company acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions
contemplated hereby, it has relied solely upon its own investigation and the express representations and warranties of the Purchaser
set forth in Agreement (including the related portions of the Purchaser Disclosure Schedules) and in any certificate delivered to the
Company pursuant hereto; and (b) neither the Purchaser nor any of its Representatives have made any representation or warranty as to
the Purchaser or this Agreement, except as expressly set forth in this Agreement (including the related portions of the Purchaser Disclosure
Schedules) or in any certificate delivered to the Company pursuant hereto.
4.30.
Information Supplied. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation
by reference: (a) in any current report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing
made with any Governmental Authority or stock exchange with respect to the transactions contemplated by this Agreement or any Ancillary
Documents; (b) in the Registration Statement; or (c) in the mailings or other distributions to the Purchaser’s stockholders and/or
prospective investors with respect to the consummation of the transactions contemplated by this Agreement or in any amendment to any
of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, contain any
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not misleading. None of the information supplied or to be
supplied by the Company expressly for inclusion or incorporation by reference in any of the Signing Press Release, the Signing Filing,
the Closing Press Release and the Closing Filing will, when filed or distributed, as applicable, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty
or covenant with respect to any information supplied by or on behalf of the Purchaser or its Affiliates.
4.31.
Disclosure. No representations or warranties by the Company in this Agreement (as modified by the Company Disclosure Schedules)
or the Ancillary Documents, (a) contains or will contain any untrue statement of a material fact, or (b) omits or will omit to state,
when read in conjunction with all of the information contained in this Agreement, the Company Disclosure Schedules and the Ancillary
Documents, any fact necessary to make the statements or facts contained therein not materially misleading.
Article
V
Covenants
5.1.
Access and Information.
(a)
During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance
with Section 7.1 or the Closing (the “Interim Period”), subject to Section 5.15, the Company
shall give, and shall cause its Representatives to give, the Purchaser and its Representatives, at reasonable times during normal business
hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to appropriate employees, properties,
Contracts, agreements, commitments, books and records, financial and operating data and other information (including Tax Returns, internal
working papers, client files, client Contracts and director service agreements), of or pertaining to the Company, as the Purchaser or
its Representatives may reasonably request regarding the Company and its respective business, assets, Liabilities, financial condition,
prospects, operations, management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated
quarterly balance sheet and income statement, a copy of each material report, schedule and other document filed with or received by a
Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers
(subject to the consent or any other conditions required by such accountants, if any)) and cause each of the Company’s Representatives
to reasonably cooperate with the Purchaser and its Representatives in their investigation; provided, however, that the Purchaser
and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations
of the Company and the Company shall not be required to provide information it reasonably determines that it cannot provide as a matter
of Law, Contract, or protection of attorney-client or similar privilege. No information or knowledge obtained by the Purchaser in any
investigation conducted pursuant to the access contemplated by this Section 5.1 shall affect or be deemed to modify any representation
or warranty of the Company set forth in this Agreement or otherwise impair the rights and remedies available to the Purchaser hereunder.
(b)
During the Interim Period, subject to Section 5.15, the Purchaser shall give, and shall cause its Representatives to give, the
Company and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable
access to all offices and other facilities and to all properties, Contracts, agreements, commitments, books and records, financial and
operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director service
agreements), of or pertaining to the Purchaser or its Subsidiaries, as the Company or its Representatives may reasonably request regarding
the Purchaser, its Subsidiaries and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management,
and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance sheet and income statement,
a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the requirements
of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions
required by such accountants, if any)) and cause each of the Purchaser’s Representatives to reasonably cooperate with the Company
and its Representatives in their investigation; provided, however, that the Company and its Representatives shall conduct any
such activities in such a manner as not to unreasonably interfere with the business or operations of the Purchaser or any of its Subsidiaries.
No information or knowledge obtained by the Company in any investigation conducted pursuant to the access contemplated by this Section
5.1 shall affect or be deemed to modify any representation or warranty of the Purchaser set forth in this Agreement or otherwise
impair the rights and remedies available to the Company hereunder.
5.2.
Conduct of Business of the Company.
(a)
Unless the Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during
the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents or as set forth on Schedule 5.2
of the Company Disclosure Schedules, the Company shall, and shall cause its Subsidiaries to, (i) conduct their respective businesses,
in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to the
Company and their respective businesses, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate
to preserve intact, in all material respects, their respective business organizations, to keep available the services of the Key Employees,
and to preserve the possession, control and condition of their respective material assets, all as consistent with past practice.
(b)
Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents
as set forth on Schedule 5.2 of the Company Disclosure Schedules, 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 such amendment to permit the Preferred
Conversion;
(ii)
authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity
securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities,
or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities
of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities
(in each case, other than pursuant to the Pre-Closing Company Capital Raise);
(iii)
split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof
or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of
its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities (in each
case, other than pursuant to the Pre-Closing Company Capital Raise);
(iv)
other than in conjunction with the Pre-Closing Company Capital Raise, incur, create, assume, prepay or otherwise become liable for any
Indebtedness (directly, contingently or otherwise) in excess of $250,000 individually or $1,000,000 in the aggregate, make a loan or
advance to or investment in any third party (other than advancement of expenses to employees in the ordinary course of business), or
guarantee or endorse any Indebtedness, Liability or obligation of any Person in excess of $25,000 individually or $250,000 in the aggregate;
(v)
(A) materially increase the wages, salaries or compensation of its employees, in any event not in the aggregate by more than five percent
(5%), (B) make or commit to make any bonus payment (whether in cash, property or securities) to any employee, or (C) enter into, establish,
materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or
employee, in each case of (A) – (C) other than as required by applicable Law, pursuant to the terms of any Company Benefit Plans
or in the ordinary course of business consistent with past practice;
(vi)
make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation,
audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting
or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii)
transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company
Registered IP or other Company IP (excluding non-exclusive licenses of Company IP to the Company customers in the ordinary course of
business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii)
terminate, or waive or assign any material right under, any Company Material Contract or enter into any Contract that would be a Company
Material Contract, in any case outside of the ordinary course of business consistent with past practice;
(ix)
fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x)
establish any Subsidiary or enter into any new line of business;
(xi)
fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance
coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which
is currently in effect;
(xii)
revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required
to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii)
waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation
relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises
that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by,
the Company or its Affiliates) not in excess of $100,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any
Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv)
close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv)
acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any
corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets
outside the ordinary course of business consistent with past practice;
(xvi)
make capital expenditures in excess of $25,000 (individually for any project (or set of related projects) or $100,000 in the aggregate),
other than expenditures deemed necessary for the advancement of the Company’s products;
(xvii)
adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii)
voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $100,000 individually
or $500,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix)
sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise
dispose of any material portion of its properties, assets or rights;
(xx)
enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi)
take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental
Authority to be obtained in connection with this Agreement;
(xxii)
accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the
ordinary course of business consistent with past practice;
(xxiii)
enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person
(other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent
with past practice);
(xxiv)
maintain the existing relations and goodwill of the Company with customers, suppliers, distributors and creditors of the Company and
use commercially reasonable efforts to maintain all insurance policies of the Company or equivalent substitutes therefor; or
(xxv)
authorize or agree to do any of the foregoing actions.
5.3.
Conduct of Business of the Purchaser.
(a)
Unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during
the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents or as set forth on Schedule 5.3
of the Purchaser Disclosure Schedule, the Purchaser shall, and shall cause its Subsidiaries to, (i) conduct their respective businesses,
in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to the
Purchaser and its Subsidiaries and their respective businesses, assets and employees, and (iii) take all commercially reasonable measures
necessary or appropriate to preserve intact, in all material respects, their respective business organizations, to keep available the
services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition
of their respective material assets, all as consistent with past practice. Notwithstanding anything to the contrary in this Section
5.3, nothing in this Agreement shall prohibit or restrict Purchaser from extending, in accordance with Purchaser’s Organizational
Documents and the IPO Prospectus, the deadline by which it must complete its Business Combination, and no consent of any other Party
shall be required in connection therewith.
(b)
Without limiting the generality of Section 5.3(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents
or as set forth on Schedule 5.3 of the Purchaser Disclosure Schedule, during the Interim Period, without the prior written consent
of the Company (such consent not to be unreasonably withheld, conditioned or delayed), the Purchaser shall not, and shall cause its Subsidiaries
to not:
(i)
amend, waive or otherwise change, in any respect, its Organizational Documents other than in connection with the Domestication and Conversion;
(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 $250,000
individually or $1,000,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any
Indebtedness, Liability or obligation of any Person (provided that this Section 5.3(b)(iv) shall not prevent the Purchaser from
borrowing funds necessary to finance its ordinary course administrative costs and expenses and expenses incurred in connection with the
consummation of the Merger and the other transactions contemplated by this Agreement (“Future Working Capital Loans”),
up to an aggregate additional Indebtedness during the Interim Period of $2,000,000);
(v)
enter into or establish any Benefit Plan;
(vi)
make, change, or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any change in its accounting
or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii)
amend, waive or otherwise change the Trust;
(viii)
terminate, waive or assign any right under any material Purchaser Material Contract;
(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)
change its fiscal year, revalue any of its material assets or make any change in accounting methods, principles or practices, except
to the extent required to comply with GAAP and after consulting the Purchaser’s outside auditors;
(xiii)
waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation
relating to this Agreement or the transactions contemplated hereby);
(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)
authorize, recommend, propose, or announce an intention to adopt a plan of complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization (other than with respect to the Merger);
(xvi)
sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise
dispose of any portion of its properties, assets or rights;
(xvii)
enter into any agreement, understanding or arrangement with respect to the voting of Purchaser Securities;
(xviii)
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;
(xix)
create any consensual liens on any property or assets of Purchaser;
(xx)
hire any employee, officer, consultant, freelancer, independent contractor or sub-contractor, or adopt or enter into any employee benefit
or compensatory plan, policy, program, agreement, trust or arrangement;
(xxi)
other than in the ordinary course of business (A) pay or promise to pay, fund any new, enter into or make any grant of any severance,
change in control, retention or termination payment to any director, officer, employee, consultant, freelancer, independent contractor
or sub-contractor of Purchaser, (B) take any action to accelerate any material payments or benefits, or the funding of any material payments
or benefits, payable or to become payable to any director, officer, other employee of Purchaser, or (C) take any action to materially
increase any compensation or material benefits of any director, officer, other employee, consultant, freelancer, independent contractor
or sub-contractor of Purchaser; or
(xxii)
agree or commit to do, or resolve, authorize or approve any action to do any of the foregoing, or take any action or omission that would
result in any of the foregoing.
5.4.
Annual and Interim Financial Statements. During the Interim Period, within thirty (30) calendar days following the end of each
three-month quarterly period and each fiscal year (or such earlier date as such financial statements need to be available for inclusion
in the Registration Statement), the Company shall deliver to the Purchaser unaudited consolidated financial statements, including an
income statement and unaudited consolidated balance sheet, changes in shareholders’ equity, and consolidated statement of cash
flows of the Company for the period from the Interim Balance Sheet Date through the end of such quarterly period or fiscal year and the
applicable comparative period in the preceding fiscal year, in each case accompanied by a certificate of the Chief Financial Officer
of the Company to the effect that all such financial statements fairly present the consolidated financial position and results of operations
of the Company as of the date or for the periods indicated, in accordance with GAAP, subject to year-end audit adjustments and excluding
footnotes. From the date hereof through the Closing Date, the Company will also promptly deliver to the Purchaser copies of any audited
consolidated financial statements of the Company that the Company’s certified public accountants may issue.
5.5.
Purchaser Public Filings. During the Interim Period, the Purchaser will keep current and timely file all of its public filings
with the SEC and otherwise comply in all material respects with applicable securities Laws and shall use its commercially reasonable
efforts to (a) maintain the listing of the Purchaser Public Units, the Purchaser Common Stock and the Purchaser Public Warrants on Nasdaq,
(b) cause the Purchaser Common Stock issuable in accordance with this Agreement to be approved for listing on Nasdaq, subject to official
notice of issuance thereof, and (c) satisfy any applicable initial and continuing listing requirements of Nasdaq as promptly as reasonably
practicable after the date of this Agreement, and in any event prior to the Effective Time; provided, that the Parties acknowledge
and agree that from and after the Closing, the Parties intend to list on Nasdaq only the Purchaser Common Stock and the Purchaser Public
Warrants.
5.6.
No Solicitation.
(a)
For purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any
indication of interest in making an offer or proposal, from any Person or group at any time relating to an Alternative Transaction, and
(ii) an “Alternative Transaction” means (A) with respect to the Company and its Affiliates, a transaction (other
than the transactions contemplated by this Agreement) concerning the sale of (x) all or any material part of the business or assets of
the Company (other than in the ordinary course of business consistent with past practice) or (y) any of the shares or other equity interests
or profits of the Company, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets,
merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise and (B) with respect
to the Purchaser and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning a Business
Combination involving Purchaser, provided that an Acquisition Proposal or an Alternative Transaction does not include any transaction
intended to serve as a capital raising transaction.
(b)
During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources
in furtherance of the transactions contemplated hereby, each Party shall not, and shall cause its Representatives to not, without the
prior written consent of the Company and the Purchaser, directly or indirectly, (i) solicit, assist, initiate or facilitate the making,
submission or announcement of, or intentionally encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding
such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees
to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to
an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that
could reasonably be expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve,
endorse or recommend, any Acquisition Proposal, (v) negotiate or enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement related to any Acquisition Proposal, or (vi) release any third Person from, or waive any provision
of, any confidentiality agreement to which such Party is a party.
(c)
Each Party shall notify the others as promptly as practicable (and in any event within 48 hours) in writing of the receipt by such Party
or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions
or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information
or requests for discussions or negotiations that could be expected to result in an Acquisition Proposal, and (ii) any request for non-public
information relating to such Party or its Affiliates in connection with any Acquisition Proposal, specifying in each case, the material
terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if oral) and the identity of the party
making such inquiry, proposal, offer or request for information. Each Party shall keep the others promptly informed of the status of
any such inquiries, proposals, offers or requests for information. During the Interim Period, each Party shall, and shall cause its Representatives
to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition
Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions or negotiations.
5.7.
No Trading. The Company acknowledges and agrees that it is aware, and that the Company’s Affiliates are aware (and each
of their respective Representatives are 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 (or NYSE, as applicable)
promulgated thereunder or otherwise (the “Federal Securities Laws”) and other applicable foreign and domestic
Laws on a Person possessing material nonpublic information about a publicly traded company. The Company hereby agrees that, while it
is in possession of such material nonpublic information, it shall not purchase or sell any securities of the Purchaser (other than to
engage in the Merger in accordance with Article I), communicate such information to any third party, take any other action with respect
to the Purchaser in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
5.8.
Notification of Certain Matters. During the Interim Period, each Party shall give prompt notice to the other Parties if such Party
or its Affiliates: (a) fails to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or
its Affiliates hereunder in any material respect; (b) receives any notice or other communication in writing from any third party (including
any Governmental Authority) alleging (i) that the Consent of such third party is or may be required in connection with the transactions
contemplated by this Agreement or (ii) any non-compliance with any Law by such Party or its Affiliates; (c) receives any notice or other
communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; (d) discovers any fact
or circumstance that, or becomes aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would
reasonably be expected to cause or result in any of the conditions to the Closing set forth in Article VI not being satisfied
or the satisfaction of those conditions being materially delayed; or (e) becomes aware of the commencement or threat, in writing, of
any Action against such Party or any of its Affiliates, or any of their respective properties or assets, or, to the Knowledge of such
Party, any officer, director, partner, member or manager, in his, her or its capacity as such, of such Party or of its Affiliates with
respect to the consummation of the transactions contemplated by this Agreement. No such notice shall constitute an acknowledgement or
admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining
whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
5.9.
Efforts.
(a)
Subject to the terms and conditions of this Agreement, each Party shall use its commercially reasonable efforts, and shall cooperate
fully with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary,
proper or advisable under applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including the
receipt of all applicable Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of Governmental
Authorities applicable to the transactions contemplated by this Agreement.
(b)
In furtherance and not in limitation of Section 5.9(a), to the extent required under any Laws that are designed to prohibit, restrict
or regulate actions having the purpose or effect of monopolization or restraint of trade (“Antitrust Laws”),
each Party hereto agrees to make any required filing or application under Antitrust Laws, as applicable, at such Party’s sole cost
and expense, with respect to the transactions contemplated hereby as promptly as practicable, to supply as promptly as reasonably practicable
any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other
actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under Antitrust
Laws as soon as practicable, including by requesting early termination of the waiting period provided for under the Antitrust Laws. Each
Party shall, in connection with its efforts to obtain all requisite approvals and authorizations for the transactions contemplated by
this Agreement under any Antitrust Law, use its commercially reasonable efforts to: (i) cooperate in all respects with each other Party
or its Affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any
proceeding initiated by a private Person; (ii) keep the other Parties reasonably informed of any communication received by such Party
or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any communication received
or given in connection with any proceeding by a private Person, in each case regarding any of the transactions contemplated by this Agreement;
(iii) permit a Representative of the other Parties and their respective outside counsel to review any communication given by it to, and
consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any proceeding
by a private Person, with any other Person, and to the extent permitted by such Governmental Authority or other Person, give a Representative
or Representatives of the other Parties the opportunity to attend and participate in such meetings and conferences; (iv) in the event
a Party’s Representative is prohibited from participating in or attending any meetings or conferences, the other Parties shall
keep such Party promptly and reasonably apprised with respect thereto; and (v) use commercially reasonable efforts to cooperate in the
filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the transactions
contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental
Authority.
(c)
As soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use
(and shall cause their respective Affiliates to use) their respective commercially reasonable efforts to prepare and file with Governmental
Authorities requests for approval of the transactions contemplated by this Agreement and shall use commercially reasonable efforts to
have such Governmental Authorities approve the transactions contemplated by this Agreement. Each Party shall give prompt written notice
to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection
with the transactions contemplated by this Agreement, and shall promptly furnish the other Parties with a copy of such Governmental Authority
notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the transactions
contemplated hereby, whether prior to the Closing or after the Closing, each Party shall arrange for Representatives of such Party to
be present for such hearing or meeting. If any objections are asserted with respect to the transactions contemplated by this Agreement
under any applicable Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or
any private Person challenging any of the transactions contemplated by this Agreement or any Ancillary Document as violative of any applicable
Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby
or thereby, the Parties shall use their commercially reasonable efforts to resolve any such objections or Actions so as to timely permit
consummation of the transactions contemplated by this Agreement and the Ancillary Documents, including in order to resolve such objections
or Actions which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation
of the transactions contemplated hereby or thereby. In the event any Action is instituted (or threatened to be instituted) by a Governmental
Authority or private Person challenging the transactions contemplated by this Agreement, or any Ancillary Document, the Parties shall,
and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective commercially reasonable
efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary
or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement
or the Ancillary Documents.
(d)
Prior to the Closing, each Party shall use its commercially reasonable efforts to obtain any Consents of Governmental Authorities or
other third Persons as may be necessary for the consummation by such Party or its Affiliates of the transactions contemplated by this
Agreement or required as a result of the execution or performance of, or consummation of the transactions contemplated by, this Agreement
by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
(e)
Prior to the Closing, Purchaser and Company shall use commercially reasonable efforts to provide such assistance as may be reasonably
requested by the Company in connection with facilitating any necessary financing transactions required to meet the Minimum Cash Condition.
(f)
Notwithstanding the foregoing, nothing in this Section 5.9 shall require, or be construed to require any of the Parties or their
respective affiliates to agree to (i) sell, license, hold separate, divest, discontinue, or limit, before or after the Closing Date,
any assets, businesses, or interests; (ii) terminate, amend or assign any existing relationships and contractual rights or obligations,
(iii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses, interests, or relationships;
or (iv) any modification or waiver of the terms and conditions of this Agreement.
5.10.
Tax Matters.
(a)
Each of the Parties shall use its reasonable best efforts to cause the Merger to qualify as a “reorganization” within the
meaning of Section 368(a) of the Code. None of the Parties shall (and each of the Parties shall cause their respective Subsidiaries not
to) take any action, or fail to take any action, that could reasonably be expected to cause the Merger to fail to qualify as a “reorganization”
within the meaning of Section 368(a) of the Code. The Parties intend to report and, except to the extent otherwise required by Law, shall
report, for federal income tax purposes, the Merger as a “reorganization” within the meaning of Section 368(a) of the Code.
The Parties shall maintain their books and records and file or cause to be filed all federal, state and local income Tax Returns and
schedules thereto in a manner consistent with this Section 5.10, except as otherwise required by a change in applicable Law after
the date of this Agreement or a final determination within the meaning of section 1313(a)(1) of the Code.
(b)
Any and all transfer, documentary, sales, use, real property, stamp, registration and other similar Taxes, and all conveyance fees, recording
charges and other fees and charges (including any associated penalties and interest) incurred in connection with the Merger will be paid
by the Purchaser when due, and Purchaser will, at its own expense, file all necessary Tax Returns and other documentation with respect
to all such Taxes, fees and charges.
(c)
Without the prior written consent of the Seller Representative, Purchaser, the Company, and their respective Affiliates shall not, with
respect to any pre-Closing Tax period, make, change or rescind any Tax election, claim a refund, amend any Tax Return or take any position
on any Tax Return, take any action, or enter into any other transaction, in each case, that would have, or reasonably be expected to
have, the effect of (1) increasing the Tax liability of any of the Company in respect of any pre-Closing Tax period or portion thereof
or (2) increasing the Tax liability, or giving rise to other liabilities, on the part of any Company Security Holders.
(d)
Purchaser and the Company agree to retain and furnish or cause to be furnished to one another, upon request, as promptly as practicable,
such information and assistance relating to the Company as is reasonably necessary for the filing of all Tax Returns of or with respect
to the Company, the making of any election related to Taxes of or with respect to the Company, the preparation for any audit by any Tax
authority and the prosecution or defense of any claim or other disputes relating to any Tax Return of or with respect to the Company,
Purchaser and the Company will cooperate with each other in the conduct of any audit or other proceeding related to Taxes of or with
respect to the Company.
(e)
The Parties agree that, for U.S. federal income tax purposes, any Company Transaction Expenses shall be allocated and attributable to
a pre-Closing Tax period to the maximum extent allowed under applicable Law.
5.11.
Further Assurances. The Parties shall further cooperate with each other and use their respective commercially reasonable efforts
to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on their part under this
Agreement and applicable Laws to consummate the transactions contemplated by this Agreement as soon as reasonably practicable, including
preparing and filing as soon as practicable all documentation to effect all necessary notices, reports and other filings.
5.12.
The Registration Statement.
(a)
As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the Company, and file
with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained
therein, the “Registration Statement”) in connection with the registration under the Securities Act of the
Purchaser Common Stock to be issued under this Agreement as the Merger Consideration, which Registration Statement will also contain
a proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser
stockholders for the matters to be acted upon at the Purchaser Special Meeting and providing the Public Stockholders an opportunity in
accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their shares of Purchaser Common Stock
redeemed (the “Redemption”) in conjunction with the stockholder vote on the Purchaser Stockholder Approval
Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote,
at a special meeting of Purchaser stockholders to be called and held for such purpose (the “Purchaser Special Meeting”),
in favor of resolutions approving (i) the adoption and approval of this Agreement and the transactions contemplated hereby or referred
to herein, including the SPAC Domestication and the Merger, by the holders of shares of Purchaser Common Stock in accordance with the
Purchaser’s Organizational Documents, the DCGL and the rules and regulations of the SEC and Nasdaq, (ii) the adoption and approval
of the Amended Purchaser Charter, (iii) the appointment of the members of the Post-Closing Purchaser Board in accordance with Section
5.17 hereof, (iv) the adoption and approval of the Purchaser Equity Incentive Plan and any equity grants, to the extent required,
(v) such other matters as the Company and Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect
the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (v), collectively,
the “Purchaser Stockholder Approval Matters”), and (vi) the adjournment of the Purchaser Special Meeting, if
necessary or desirable in the reasonable determination of Purchaser. If on the date for which the Purchaser Special Meeting is scheduled,
Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval,
whether or not a quorum is present, Purchaser may make one or more successive postponements or adjournments of the Purchaser Special
Meeting. In connection with the Registration Statement, Purchaser will file with the SEC financial and other information about the transactions
contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation and registration statement rules set
forth in the Purchaser’s Organizational Documents, the DGCL and the rules and regulations of the SEC and Nasdaq. Purchaser shall
cooperate and provide the Company (and its counsel) with a reasonable opportunity to review and comment on the Registration Statement
and any amendment or supplement thereto prior to filing the same with the SEC. The Company shall provide Purchaser with such information
concerning the Company and its stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise),
business and operations that may be required or appropriate for inclusion in the Registration Statement, or in any amendments or supplements
thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were
made, not materially misleading.
(b)
Purchaser shall take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange
Act and other applicable Laws in connection with the Registration Statement, the Purchaser Special Meeting and the Redemption. Each of
Purchaser and the Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees,
upon reasonable advance notice, available to the Company, Purchaser and, after the Closing, the Purchaser Representative, and their respective
Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement,
including the Registration Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any
information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information
is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. Purchaser shall
amend or supplement the Registration Statement and cause the Registration Statement, as so amended or supplemented, to be filed with
the SEC and to be disseminated to Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to
the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c)
Purchaser, with the assistance of the other Parties, shall promptly respond to any SEC comments on the Registration Statement and shall
otherwise use its commercially reasonable efforts to cause the Registration Statement to “clear” comments from the SEC and
become effective. Purchaser shall provide the Company with copies of any written comments, and shall inform the Company of any material
oral comments, that Purchaser or its Representatives receive from the SEC or its staff with respect to the Registration Statement, the
Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Company a reasonable opportunity
under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d)
As soon as practicable following the Registration Statement “clearing” comments from the SEC and becoming effective, Purchaser
shall distribute the Registration Statement to Purchaser’s stockholders and the Company Stockholders, and, pursuant thereto, shall
call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the effectiveness
of the Registration Statement.
(e)
Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, Purchaser’s Organizational Documents
and this Agreement in the preparation, filing and distribution of the Registration Statement, any solicitation of proxies thereunder,
the calling and holding of the Purchaser Special Meeting and the Redemption.
5.13.
Company Stockholder Meeting. As promptly as practicable after the Registration Statement has become effective, the Company will
call a meeting of its stockholders in order to obtain the Required Company Stockholder Approval (the “Company Special Meeting”),
and the Company shall use its reasonable best efforts to solicit from the Company Stockholders proxies in favor of the Required Company
Stockholder Approval prior to such Company Special Meeting, and to take all other actions necessary or advisable to secure the Required
Company Stockholder Approval.
5.14.
Public Announcements.
(a)
The Parties agree that during the Interim Period no public release, filing or announcement concerning this Agreement or the Ancillary
Documents or the transactions contemplated hereby or thereby shall be issued by any Party or any of their Affiliates without the prior
written consent of the Purchaser and the Company (which consent shall not be unreasonably withheld, conditioned or delayed), except as
such release or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case
the applicable Party shall use commercially reasonable efforts to allow the other Parties reasonable time to comment on, and arrange
for any required filing with respect to, such release or announcement in advance of such issuance.
(b)
The Parties shall mutually agree upon and, as promptly as practicable after the execution of this Agreement (but in any event within
four (4) Business Days thereafter), issue a press release announcing the execution of this Agreement (the “Signing Press
Release”). Promptly after the issuance of the Signing Press Release, the Purchaser shall file a current report on Form
8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by
Federal Securities Laws, which the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld,
conditioned or delayed) prior to filing (with the Company reviewing, commenting upon and approving such Signing Filing in any event no
later than the third (3rd) Business Day after the execution of this Agreement). The Parties shall mutually agree upon and,
as promptly as practicable after the Closing (but in any event within four (4) Business Days thereafter), issue a press release announcing
the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”). Promptly
after the issuance of the Closing Press Release, the Purchaser shall file a current report on Form 8-K (the “Closing Filing”)
with the Closing Press Release and a description of the Closing as required by Federal Securities Laws which the Seller Representative
and the Purchaser Representative shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned
or delayed) prior to filing. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Filing,
the Closing Press Release, or any other report, statement, filing notice or application made by or on behalf of a Party to any Governmental
Authority or other third party in connection with the transactions contemplated hereby, each Party shall, upon request by any other Party,
furnish the Parties with all information concerning themselves, their respective directors, officers and equity holders, and such other
matters as may be reasonably necessary or advisable in connection with the transactions contemplated hereby, or any other report, statement,
filing, notice or application made by or on behalf of a Party to any third party and/ or any Governmental Authority in connection with
the transactions contemplated hereby.
5.15.
Confidential Information.
(a)
The Company and the Seller Representative hereby agrees that during the Interim Period and, in the event that this Agreement is terminated
in accordance with Article VII, for a period of two (2) years after such termination, they shall, and shall cause their respective Representatives
to: (i) treat and hold in strict confidence any Purchaser Confidential Information, and will not use for any purpose (except in connection
with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, performing their obligations hereunder
or thereunder, enforcing their rights hereunder or thereunder, or in furtherance of their authorized duties on behalf of the Purchaser
or its Subsidiaries), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third
party any of the Purchaser Confidential Information without the Purchaser’s prior written consent; and (ii) in the event that the
Company, the Seller Representative or any of their respective Representatives, during the Interim Period or, in the event that this Agreement
is terminated in accordance with Article VII, for a period of two (2) years after such termination, becomes legally compelled to disclose
any Purchaser Confidential Information, (A) provide the Purchaser to the extent legally permitted with prompt written notice of such
requirement so that the Purchaser or an Affiliate thereof may seek, at Purchaser’s cost, a protective Order or other remedy or
waive compliance with this Section 5.15(a), and (B) in the event that such protective Order or other remedy is not obtained, or
the Purchaser waives compliance with this Section 5.15(a), furnish only that portion of such Purchaser Confidential Information
which is legally required to be provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts
to obtain assurances that confidential treatment will be accorded such Purchaser Confidential Information. In the event that this Agreement
is terminated and the transactions contemplated hereby are not consummated, the Company and the Seller Representative shall, and shall
cause their respective Representatives to, promptly deliver to the Purchaser or destroy (at Purchaser’s election) any and all copies
(in whatever form or medium) of Purchaser Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations
and other writings related thereto or based thereon; provided, however, that the Company and the Seller Representative and their respective
Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention policies; and provided,
further, that any Purchaser Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations
set forth in this Agreement.
(b)
The Purchaser hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article
VII, for a period of two (2) years after such termination, it shall, and shall cause its Representatives to: (i) treat and hold in strict
confidence any Company Confidential Information, and will not use for any purpose (except in connection with the consummation of the
transactions contemplated by this Agreement or the Ancillary Documents, performing its obligations hereunder or thereunder or enforcing
its rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available
to any third party any of the Company Confidential Information without the Company’s prior written consent; and (ii) in the event
that the Purchaser or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance
with Article VII, for a period of two (2) years after such termination, becomes legally compelled to disclose any Company Confidential
Information, (A) provide the Company to the extent legally permitted with prompt written notice of such requirement so that the Company
may seek, at the Company’s sole expense, a protective Order or other remedy or waive compliance with this Section 5.15(b)
and (B) in the event that such protective Order or other remedy is not obtained, or the Company waives compliance with this Section
5.15(b), furnish only that portion of such Company Confidential Information which is legally required to be provided as advised in
writing by outside counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will
be accorded such Company Confidential Information. In the event that this Agreement is terminated and the transactions contemplated hereby
are not consummated, the Purchaser shall, and shall cause its Representatives to, promptly deliver to the Company or destroy (at the
Purchaser’s election) any and all copies (in whatever form or medium) of Company Confidential Information and destroy all notes,
memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that the Purchaser
and its Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention policies; and
provided, further, that any Company Confidential Information that is not returned or destroyed shall remain subject to the confidentiality
obligations set forth in this Agreement. Notwithstanding the foregoing, the Purchaser and its Representatives shall be permitted to disclose
any and all Company Confidential Information to the extent required by the Federal Securities Laws.
5.16.
Documents and Information. After the Closing Date, the Purchaser and the Company shall, and shall cause their respective Subsidiaries
to, until the seventh (7th) anniversary of the Closing Date, retain all books, records and other documents pertaining to the
business of the Company in existence on the Closing Date and make the same available for inspection and copying by the Purchaser Representative
during normal business hours of the Company 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 the Company) without first advising the Purchaser Representative in writing and giving the Purchaser Representative
a reasonable opportunity to obtain possession thereof.
5.17.
Post-Closing Board of Directors and Executive Officers.
(a)
The Parties shall take all necessary action, including causing the directors of the Purchaser to resign, so that effective as of the
Closing, the Purchaser’s board of directors (the “Post-Closing Purchaser Board”) will consist of seven
(7) individuals. Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing
Purchaser Board (i) the two (2) people designated by the Purchaser prior to the Closing (the “Purchaser Directors”),
both of whom shall be required to qualify as an independent director under Nasdaq rules, and (ii) the five (5) persons that are designated
by the Company prior to the Closing (the “Company Directors”), at least two (2) of whom shall be required to
qualify as an independent director under Nasdaq rules. The Post-Closing Purchaser Board shall be classified, with respect to the term
for which they severally hold office, into three classes. The initial Class I Directors shall serve for a term expiring at the first
annual meeting of stockholders to be held following the Closing (the “Class I Directors”); the initial Class
II Directors shall serve for a term expiring at the second annual meeting of stockholders following the Closing (the “Class
II Directors”); and the initial Class III Directors shall serve for a term expiring at the third annual meeting of stockholders
to be held following the Closing (the “Class III Directors”). At each succeeding annual meeting of stockholders,
beginning with the first annual meeting of stockholders following the Closing, Directors elected to succeed those Directors whose terms
expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. One
(1) of the Company Directors shall be Class I, one (1) of the Company Directors shall be Class II, and one (1) of the Company Directors
shall be Class III. One (1) of the Purchaser Directors shall be Class II, and one (1) of the Purchaser Directors shall be Class III.
The board of directors of the Surviving Corporation immediately after the Closing shall be the same as the Post-Closing Purchaser Board.
At or prior to the Closing, the Purchaser will provide each Purchaser Director with a customary director indemnification agreement, in
form and substance reasonably acceptable to the Parties.
(b)
The Parties shall take all action necessary, including causing the executive officers of Purchaser to resign, so that the individuals
serving as the chief executive officer and chief financial officer, respectively, of Purchaser immediately after the Closing will be
the same individuals (in the same office) as that of the Company immediately prior to the Closing.
5.18.
Purchaser Indemnification of Directors and Officers; Tail Insurance.
(a)
The Parties agree that all rights to exculpation, indemnification and advancement of expenses existing in favor of the current or former
directors and officers of the Purchaser or Merger Sub and each Person who served as a director, officer, member, trustee or fiduciary
of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request of the
Purchaser or Merger Sub (the “Purchaser D&O Indemnified Persons”) as provided in their respective Organizational
Documents or under any indemnification, employment or other similar agreements between any Purchaser D&O Indemnified Person and the
Purchaser or Merger Sub, in each case as in effect on the date of this Agreement, shall survive the Closing and continue in full force
and effect in accordance with their respective terms to the extent permitted by applicable Law. For a period of six (6) years after the
Effective Time, the Purchaser shall cause the Organizational Documents of the Purchaser and the Surviving Corporation to contain provisions
no less favorable with respect to exculpation and indemnification of and advancement of expenses to Purchaser D&O Indemnified Persons
than are set forth as of the date of this Agreement in the Organizational Documents of the Purchaser and Merger Sub to the extent permitted
by applicable Law. The provisions of this Section 5.18 shall survive the consummation of the Merger and are intended to be for
the benefit of, and shall be enforceable by, each of the Purchaser D&O Indemnified Persons and their respective heirs and representatives,
each of whom shall be a third-party beneficiary of the provisions of this Section 5.18(a).
(b)
For the benefit of the Purchaser’s and Merger Sub’s directors and officers, the Purchaser shall be permitted prior to the
Effective Time to obtain and fully pay from the capital of the Surviving Company upon release of funds from the Trust Account the premium
for a “tail” insurance policy that provides coverage for up to a six-year period from and after the Effective Time for events
occurring prior to the Effective Time (the “Purchaser D&O Tail Insurance”) that is substantially equivalent
to and in any event not less favorable in the aggregate than the Purchaser’s existing policy or, if substantially equivalent insurance
coverage is unavailable, the best available coverage. If obtained, the Purchaser shall maintain the Purchaser D&O Tail Insurance
in full force and effect, and continue to honor the obligations thereunder, and the Purchaser shall timely pay or caused to be paid all
premiums with respect to the Purchaser D&O Tail Insurance.
5.19.
Company Indemnification of Directors and Officers; Tail Insurance.
(a)
The Parties agree that all rights to exculpation, indemnification and advancement of expenses existing in favor of the current or former
directors and officers of the Company and each Person who served as a director, officer, member, trustee or fiduciary of another corporation,
partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request of the Company (the “Company
D&O Indemnified Persons”) as provided in the respective Organizational Documents or under any indemnification, employment
or other similar agreements between any Company D&O Indemnified Person and the Company, in each case as in effect on the date of
this Agreement, shall survive the Closing and continue in full force and effect in accordance with their respective terms to the extent
permitted by applicable Law. For a period of six (6) years after the Effective Time, the Company shall cause the Organizational Documents
of the Company to contain provisions no less favorable with respect to exculpation and indemnification of and advancement of expenses
to the Company D&O Indemnified Persons than are set forth as of the date of this Agreement in the Organizational Documents of the
Company to the extent permitted by applicable Law. The provisions of this Section 5.19 shall survive the consummation of the Merger
and are intended to be for the benefit of, and shall be enforceable by, each of the Company D&O Indemnified Persons and their respective
heirs and representatives, each of whom shall be a third-party beneficiary of the provisions of this Section 5.19(a).
(b)
For the benefit of the Company’s directors and officers, the Company shall, prior to the Effective Time, obtain and fully pay from
the capital of the Surviving Company upon release of funds from the Trust Account the premium for a “tail” insurance policy
that provides coverage for up to a six-year period from and after the Effective Time for events occurring prior to the Effective Time
(the “Company D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable
in the aggregate than the Company’s existing policy or, if substantially equivalent insurance coverage is unavailable, the best
available coverage. If obtained, the Company shall maintain the Company D&O Tail Insurance in full force and effect, and continue
to honor the obligations thereunder, and the Company shall timely pay or caused to be paid all premiums with respect to the Company D&O
Tail Insurance.
5.20.
Post-Closing Assumption or Creation of Benefit Plans. After the Closing, subject to the terms and conditions set forth in this
Agreement, the Purchaser or Merger Sub shall assume the Benefit Plans of the Company or create new Benefit Plans, including, but not
limited to, equity incentive plans, that are substantially similar to the Benefit Plans previously approved by the board of directors
of the Company.
5.21.
Pre-Closing Company Capital Raise. Without limiting anything to the contrary contained herein, during the Interim Period, the
Company shall use its best efforts to enter into and consummate subscription agreements with investors totaling at least $10,000,000
relating to private investments in the Company in the form of convertible promissory notes or the purchase of shares of the Company in
connection with private placements on terms agreeable to the Company and Purchaser acting reasonably (a “Pre-Closing Company
Capital Raise”). The Purchaser and the Company shall, and shall cause their respective Representatives to, cooperate with
each other and their respective Representatives in connection with such Pre-Closing Company Capital Raise.
5.22.
Non-Competition Agreements. At the Closing, the Significant Company Holders will each enter into a non-competition and non-solicitation
agreement in favor of Purchaser and Company (each, a “Non-Competition Agreement”), in form and substance mutually
acceptable to Purchaser and the Company, which will become effective as of the Closing.
5.23.
Section 16 Matters. Prior to the Effective Time, Purchaser shall take all reasonable steps as may be required to cause any acquisition
or disposition of Purchaser Common Stock or any derivative thereof that occurs or is deemed to occur by reason of or pursuant to the
Merger by each Person who is or will be or may be subject to the reporting requirements of Section 16(a) of the Exchange Act with respect
to Purchaser to be exempt under Rule 16b-3 promulgated under the Exchange Act.
5.24.
Domestications.
(a)
Subject to receipt of the Required Purchaser Stockholder Approval, prior to the Effective Time, the Purchaser shall cause the SPAC Domestication
to become effective, including by (a) filing with the Delaware Secretary of State a Certificate of Domestication in form and substance
reasonably acceptable to Purchaser and the Company, together with the Purchaser Certificate of Incorporation, (b) adopting the Purchaser
Bylaws, and (c) completing, making, and procuring all filings required to be made with the Registrar of Companies in the Cayman Islands
in connection with the SPAC Domestication. In accordance with applicable Law, at the effective time of the SPAC Domestication, by virtue
of the SPAC Domestication, and without any action on the part of any shareholder of Purchaser, the Conversion shall become effective.
(b)
Subject to receipt of the Required Company Stockholder Approval, prior to the Effective Time, the Company shall cause the Company Domestication
to become effective, including by (a) filing with the Delaware Secretary of State a Certificate of Domestication in form and substance
reasonably acceptable to Purchaser and the Company, together with the Company Certificate of Incorporation, (b) adopting the Company
Bylaws, and (c) completing, making, and procuring all filings required to be made with the Department of State in Puerto Rico in connection
with the Company Domestication.
5.25.
Incentive Equity Plan. Prior to the Effective Time, the Purchaser shall adopt, subject to the approval of the shareholders of
Purchaser, a new equity incentive plan in a form and substance reasonably acceptable to the Purchaser and the Company, with each such
party’s acceptance not to be unreasonably withheld, conditioned or delayed (the “Purchaser Equity Incentive Plan”).
The Purchaser Equity Incentive Plan will constitute an amendment, restatement and continuation of the Company Benefit Plans such that
the Purchaser Equity Incentive Plan shall also provide for a number of shares of Purchaser Common Stock (or a synthetic equivalent) reserved
for issuance equal to ten percent (10%) of the Purchaser Common Stock to be issued and outstanding immediately after the Closing, and
shall include an “evergreen” provision that will provide for an automatic increase on the first day of each fiscal year in
the number of shares available for issuance under the Purchaser Equity Incentive Plan such that the total number of shares available
for issuance under the Purchaser Equity Incentive Plan is equal to ten percent (10%) of the total number of shares of Purchaser Common
Stock then-issued and outstanding as of the last day of the prior fiscal year or such lesser amount as determined by the compensation
committee of the Purchaser. For the avoidance of doubt, any equity or synthetic equity awards assumed by the Purchaser as part of the
assumption of the Company’s Benefit Plans, including but not limited to Rollover RSUs, shall be considered awarded under the Purchaser
Equity Incentive Plan and shall be included as part of the 10% award pool.
5.26.
Disclosure Schedules. The Company shall provide Purchaser the final-form Company Disclosure Schedules no later than fourteen (14)
calendar days from the date of this Agreement (the “Disclosure Schedule Delivery Date”), and Purchaser shall provide the
Company the final-form Purchaser Disclosure Schedules no later than the Disclosure Schedule Delivery Date. Purchaser and the Company,
respectively, shall have until the end of the seventh (7th) calendar day following the Disclosure Schedule Delivery Date to review the
disclosing Party’s disclosure schedules and notify the disclosing Party of any item listed or omitted on the disclosure schedule
that has a material impact on the non-disclosing Party’s willingness or ability to consummate the Transaction (each a “Disclosure
Issue Notice”). The disclosing Party shall cure the items set forth in Disclosure Issue Notice within seven (7) calendar days following
receipt of the Disclosure Issue Notice. Failure to timely cure any items set forth in the Disclosure Issue Notice shall allow the non-disclosing
Party to terminate this Agreement pursuant to Section 7.1(i).
Article
VI
Closing Conditions
6.1.
Conditions to Each Party’s Obligations. The obligations of each Party to consummate the Merger and the other transactions
described herein shall be subject to the satisfaction or written waiver (where permissible) by the Company and the Purchaser of the following
conditions:
(a)
Required Purchaser Stockholder Approval. The Purchaser Stockholder Approval Matters that are submitted to the vote of the stockholders
of the Purchaser at the Purchaser Special Meeting in accordance with the Proxy Statement shall have been approved by the requisite vote
of the stockholders of the Purchaser at the Purchaser Special Meeting in accordance with the Purchaser’s Organizational Documents,
applicable Law and the Proxy Statement (the “Required Purchaser Stockholder Approval”).
(b)
Required Company Stockholder Approval. The Company Special Meeting shall have been held in accordance with the applicable Law and
the Company’s Organizational Documents, and at such meeting, the requisite vote of the Company Stockholders (including any separate
class or series vote that is required, whether pursuant to the Company’s Organizational Documents, any stockholder agreement or
otherwise) shall have authorized, approved and consented to, the execution, delivery and performance of this Agreement and each of the
Ancillary Documents to which the Company is or is required to be a party or bound, and the consummation of the transactions contemplated
hereby and thereby, including the Company Domestication and the Merger (the “Required Company Stockholder Approval”).
(c)
Antitrust Laws. Any waiting period (and any extension thereof) applicable to the consummation of this Agreement under any Antitrust
Laws shall have expired or been terminated.
(d)
Requisite Regulatory Approvals. All Consents required to be obtained from or made with any Governmental Authority in order to consummate
the transactions contemplated by this Agreement shall have been obtained or made.
(e)
Requisite Consents. The Consents required to be obtained from or made with any third Person (other than a Governmental Authority)
in order to consummate the transactions contemplated by this Agreement that are set forth in Schedule 6.1(e) of the Company Disclosure
Schedules and Purchaser Disclosure Schedule, respectively, shall have each been obtained or made.
(f)
No Adverse Law or Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether
temporary, preliminary or permanent) or Order that is then in effect and which has the effect of making the transactions or agreements
contemplated by this Agreement illegal or which otherwise prevents or prohibits consummation of the transactions contemplated by this
Agreement.
(g)
[Reserved].
(h)
Appointment to the Board. The members of the Post-Closing Purchaser Board shall have been elected or appointed as of the Closing
consistent with the requirements of Section 5.17.
(i)
Registration Statement. The Registration Statement shall have been declared effective by the SEC and shall remain effective as of
the Closing, and no stop order or similar order shall be in effect with respect to the Registration Statement.
(j)
Nasdaq Listing. The Purchaser Common Stock to be issued in connection with this Agreement shall have been approved for listing on
Nasdaq, subject to official notice of issuance.
6.2.
Conditions to Obligations of the Company. In addition to the conditions specified in Section 6.1, the obligations of the
Company to consummate the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or written
waiver (by the Company) of the following conditions:
(a)
Representations and Warranties. All of the representations and warranties of the Purchaser set forth in this Agreement and in any
certificate delivered by or on behalf of the Purchaser pursuant hereto shall be true and correct on and as of the Disclosure Schedule
Delivery Date and on and as of the Closing Date as if made on the Closing Date, except for (i) those representations and warranties that
address matters only as of a particular date (which representations and warranties shall have been accurate as of such date), and (ii)
any failures to be true and correct that (without giving effect to any qualifications or limitations as to materiality or Material Adverse
Effect), individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or
with respect to, the Purchaser.
(b)
Agreements and Covenants. The Purchaser shall have performed in all material respects all of the Purchaser’s obligations and
complied in all material respects with all of the Purchaser’s agreements and covenants under this Agreement to be performed or
complied with by it on or prior to the Closing Date.
(c)
No Purchaser Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Purchaser since the date
of this Agreement which is continuing and uncured.
(d)
Closing Deliveries.
(i)
Officer Certificate. The Purchaser shall have delivered to the Company a certificate, dated
the Closing Date, signed by an executive officer of the Purchaser in such capacity, certifying as to the satisfaction of the conditions
specified in Sections 6.2(a), 6.2(b) and 6.2(c).
(ii)
Secretary Certificate. The Purchaser shall have delivered to the Company a certificate
from its secretary or other executive officer certifying as to, and attaching, (A) copies of the Purchaser’s Organizational Documents
as in effect as of the Closing Date, (B) the resolutions of the Purchaser’s board of directors authorizing and approving the execution,
delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the
consummation of the transactions contemplated hereby and thereby, (C) evidence that the Required Purchaser Stockholder Approval has been
obtained and (D) the incumbency of officers authorized to execute this Agreement or any Ancillary Document to which the Purchaser is
or is required to be a party or otherwise bound.
(iii)
Good Standing. The Purchaser shall have delivered to the Company a good standing certificate
(or similar documents applicable for such jurisdictions) for the Purchaser certified as of a date no earlier than thirty (30) days prior
to the Closing Date from the proper Governmental Authority of the Purchaser’s jurisdiction of organization and from each other
jurisdiction in which the Purchaser is qualified to do business as a foreign entity as of the Closing, in each case to the extent that
good standing certificates or similar documents are generally available in such jurisdictions.
(iv)
Lock-Up
Agreement. The
Company shall have received the Sponsor’s duly executed Lock-Up Agreement.
(v)
Officer and Director Resignations. The Company shall
have received the resignations of the officers and directors set forth on Schedule 6.2(d)(v) of the Company Disclosure Schedules.
(e)
[Reserved].
(f)
Trust Account. (i) Purchaser shall have made all reasonably necessary and appropriate arrangements with the Trustee to the Trust
Account to have all of the funds contained in the Trust Account disbursed to the Purchaser, and all such funds shall be available to
the Purchaser in respect of all of the obligations of the Purchaser set forth in this Agreement and the payment of the Purchaser’s
fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby and (ii) there shall be no actions,
suits, proceedings, arbitrations or mediations pending or threatened by any Person (not including the Company and its Affiliates) with
respect to or against the Trust Account that would reasonably be expected to have a Material Adverse Effect on the Purchaser.
(g)
Disclosure Issue Resolution. The
Purchaser shall have timely cured any items listed in any Disclosure Issue Notice it received from the Company.
6.3.
Conditions to Obligations of the Purchaser. In addition to the conditions specified in Section 6.1, the obligations of
the Purchaser and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction
or written waiver (by the Purchaser) of the following conditions:
(a)
Representations and Warranties. All of the representations and warranties of the Company set forth in this Agreement and in any
certificate delivered by or on behalf of the Company pursuant hereto shall be true and correct on and as of the Disclosure Schedule Delivery
Date and on and as of the Closing Date as if made on the Closing Date, except for (i) those representations and warranties that address
matters only as of a particular date (which representations and warranties shall have been accurate as of such date), and (ii) any failures
to be true and correct that (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect),
individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect
to, the Company, taken as a whole.
(b)
Agreements and Covenants. The Company shall have performed in all material respects all of its obligations and complied in all
material respects with all of its agreements and covenants under this Agreement to be performed or complied with by it on or prior to
the Closing Date.
(c)
No Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Company taken as a whole since
the date of this Agreement which is continuing and uncured.
(d)
Certain Ancillary Documents. Each Lock-Up Agreement and Non-Competition Agreement shall be in full force and effect in accordance
with the terms thereof as of the Closing.
(e)
Closing Deliveries.
(i)
Officer Certificate. The Purchaser shall have received a certificate from the Company,
dated as the Closing Date, signed by an executive officer of the Company in such capacity, certifying as to the satisfaction of the conditions
specified in Sections 6.3(a), 6.3(b), and 6.3(c).
(ii)
Secretary
Certificate.
The Company shall have delivered to the Purchaser a
certificate executed by the Company’s secretary certifying as to the validity and effectiveness of, and attaching, (A) copies of
the Company’s Organizational Documents as in effect as of the Closing Date (immediately prior to the Effective Time), (B) the requisite
resolutions of the Company’s board of directors authorizing and approving the execution, delivery and performance of this Agreement
and each Ancillary Document to which the Company is or is required to be a party or bound, and the consummation of the Merger and the
other transactions contemplated hereby and thereby, and the adoption of the Surviving Corporation Organizational Documents, and recommending
the approval and adoption of the same by the Company Stockholders at a duly called meeting of stockholders, (C) evidence that the Required
Company Stockholder Approval has been obtained and (D) the incumbency of officers of the Company authorized to execute this Agreement
or any Ancillary Document to which the Company is or is required to be a party or otherwise bound.
(iii)
Good
Standing.
The Company shall have delivered to the Purchaser good
standing certificates (or similar documents applicable for such jurisdictions) for all of the Company certified as of a date no earlier
than thirty (30) days prior to the Closing Date from the proper Governmental Authority of the Company’s jurisdiction of organization
and from each other jurisdiction in which the Company is qualified to do business as a foreign corporation or other entity as of the
Closing, in each case to the extent that good standing certificates or similar documents are generally available in such jurisdictions.
(iv)
Certified
Charter.
The Company shall have delivered to the Purchaser a
copy of the Company Charter, as in effect as of immediately prior to the Effective Time, certified by the Secretary of State of the State
of Delaware as of a date no more than ten (10) Business Days prior to the Closing Date.
(v)
Company
Warrant Termination.
The Company shall have delivered to the Purchaser documentation
reasonably acceptable to the Purchaser evidencing that the Company Warrant Termination has occurred and that there are no other exercisable
Company Warrants.
(vi)
Non-Competition
Agreements.
The Purchaser shall have received the Non-Competition
Agreements, which will become effective as of the Closing.
(vii)
Transmittal
Documents.
The Exchange Agent shall have received from each Company
Stockholder the Transmittal Documents, each in form reasonably acceptable for transfer on the books of the Company.
(viii)
Registered
Agent Letter.
The Purchaser shall receive a copy of the letter, executed
by all parties thereto, in the agreed form, to the Delaware registered agent of the Company from the client of record of such registered
agent instructing it to take instruction from the Purchaser (or its nominees) from Closing.
(ix)
Lock-Up
Agreements.
The Purchaser shall have received a Lock-Up Agreement
for each Significant Company Holder, duly executed by such Significant Company Holder.
(x)
Termination
of Certain Contracts.
The Purchaser shall have received evidence reasonably
acceptable to the Purchaser that the Contracts involving the Company and/or Company Security Holders or other Related Persons set forth
on Schedule 6.3(e)(xi) of the Purchaser Disclosure Schedule shall have been terminated with no further obligation or Liability
of the Company thereunder.
(f)
Minimum Cash Condition. Upon the Closing, the Company shall have cash on hand, after giving effect to (without duplication) (i)
the payment of Purchaser Expenses and (ii) the payment of Company Transaction Expenses, at least equal to $0.00 (the “Minimum
Cash Condition”).
(g)
Disclosure Issue Resolution. The Company shall have timely cured any items listed in any Disclosure Issue Notice it received from
Purchaser.
6.4.
Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any
condition set forth in this Article VI to be satisfied if such failure was caused by the failure of such Party or its Affiliates
(or with respect to the Company, the Company or Company Stockholder) failure to comply with or perform any of its covenants or obligations
set forth in this Agreement.
Article
VII
Termination and Expenses
7.1.
Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any time prior to
the Closing as follows:
(a)
by mutual written consent of the Purchaser and the Company;
(b)
by written notice by the Purchaser or the Company if any of the conditions to the Closing set forth in Article VI have not been satisfied
or waived by August 17, 2025 (the “Outside Date”); provided, however, the right to terminate this Agreement
under this Section 7.1(b) shall not be available to a Party if the breach or violation by such Party or its Affiliates of any
representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of the Closing to
occur on or before the Outside Date;
(c)
by written notice by either the Purchaser or the Company if a Governmental Authority of competent jurisdiction shall have issued an Order
or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement,
and such Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement
pursuant to this Section 7.1(c) shall not be available to a Party if the failure by such Party or its Affiliates to comply with
any provision of this Agreement has been a substantial cause of, or substantially resulted in, such action by such Governmental Authority;
(d)
by written notice by the Company to Purchaser, if (i) there has been a breach by the Purchaser of any of its representations, warranties,
covenants or agreements contained in this Agreement, or if any representation or warranty of the Purchaser shall have become untrue or
inaccurate, in any case, which would result in a failure of a condition set forth in Section 6.2(a) or Section 6.2(b) to
be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii)
the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice
of such breach or inaccuracy is provided to the Purchaser or (B) the Outside Date; provided, that the Company shall not have the right
to terminate this Agreement pursuant to this Section 7.1(d) if at such time the Company is in material uncured breach of this
Agreement;
(e)
by written notice by the Purchaser to the Company, if (i) there has been a breach by the Company of any of its representations, warranties,
covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become untrue or
inaccurate, in any case, which would result in a failure of a condition set forth in Section 6.3(a) or Section 6.3(b) to
be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii)
the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice
of such breach or inaccuracy is provided to the Company or (B) the Outside Date; provided, that the Purchaser shall not have the right
to terminate this Agreement pursuant to this Section 7.1(e) if at such time the Purchaser is in material uncured breach of this
Agreement;
(f)
by written notice by the Purchaser to the Company, if there shall have been a Material Adverse Effect on the Company taken as a whole
following the date of this Agreement which is uncured and continuing;
(g)
by written notice by either the Purchaser or the Company to the other, if the Purchaser Special Meeting is held (including any adjournment
or postponement thereof) and has concluded, the Purchaser’s stockholders have duly voted, and the Required Purchaser Stockholder
Approval was not obtained; or
(h)
by written notice by either the Purchaser or the Company to the other, if the Company Special Meeting is held (including any adjournment
or postponement thereof) and has concluded, the Company Stockholders have duly voted, and the Required Company Stockholder Approval was
not obtained.
(i)
By written notice by either the Purchaser or the Company to the other, if the applicable conditions set forth in Section 6.2(g)
or Section 6.3(f), respectively, are not met.
7.2.
Effect of Termination. This Agreement may only be terminated in the circumstances described in Section 7.1 and pursuant
to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination,
including the provision of Section 7.1 under which such termination is made. In the event of the valid termination of this Agreement
pursuant to Section 7.1, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party
or any of their respective Representatives, and all rights and obligations of each Party shall cease, except: (i) Sections 5.14, 5.15,
7.3, 8.1, Article IX and this Section 7.2 shall survive the termination of this Agreement, and (ii) nothing
herein shall relieve any Party from Liability for any willful breach of any representation, warranty, covenant or obligation under this
Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (i)
and (ii) above, subject to Section 8.1). Without limiting the foregoing, and except as provided in Section 7.3 and this
Section 7.2 (but subject to Section 8.1) and subject to the right to seek injunctions, specific performance or other equitable
relief in accordance with Section 9.7, the Parties’ sole right prior to the Closing with respect to any breach of any representation,
warranty, covenant or other agreement contained in this Agreement by another Party or with respect to the transactions contemplated by
this Agreement shall be the right, if applicable, to terminate this Agreement pursuant to Section 7.1.
7.3.
Fees and Expenses. Subject to Sections 5.21, 8.1, 9.14 and 9.15, all Company Transaction Expenses
and Purchaser Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party
incurring such expenses; provided, however, that if the Closing occurs, all remaining Company Transaction Expenses and Purchaser Expenses
shall be paid in full at Closing from the capital of the Surviving Corporation.
Article
VIII
Waivers and Releases
8.1.
Waiver of Claims Against Trust. Reference is made to the IPO Prospectus. The Company, Merger Sub and the Seller Representative
each hereby represents and warrants that it has read the IPO Prospectus and understands that Purchaser has established the Trust Account
containing the proceeds of the IPO and the overallotment shares acquired by Purchaser’s underwriters and from certain private placements
occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of Purchaser’s public
stockholders (including overallotment shares acquired by Purchaser’s underwriters) (the “Public Stockholders”)
and that, except as otherwise described in the IPO Prospectus, Purchaser may disburse monies from the Trust Account only: (a) to the
Public Stockholders in the event they elect to redeem their shares of Purchaser Common Stock in connection with the consummation of its
initial business combination (as such term is used in the IPO Prospectus) (“Business Combination”) or in connection
with an amendment to Purchaser’s Organizational Documents to extend Purchaser’s deadline to consummate a Business Combination,
(b) to the Public Stockholders if the Purchaser fails to consummate a Business Combination within fifteen (15) months after the closing
of the IPO, subject to extension by amendment to Purchaser’s Organizational Documents, (c) with respect to any interest earned
on the amounts held in the Trust Account, amounts necessary to pay for any taxes and up to $100,000 in dissolution expenses, and (d)
to Purchaser after or concurrently with the consummation of a Business Combination. For and in consideration of Purchaser entering into
this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the
Company, Merger Sub and the Seller Representative hereby agrees on behalf of itself and its Affiliates that, notwithstanding anything
to the contrary in this Agreement, none of the Company, Merger Sub or the Seller Representative nor any of their respective Affiliates
do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or
distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such
claim arises as a result of, in connection with or relating in any way to, this Agreement or any proposed or actual business relationship
between Purchaser or any of its Representatives, on the one hand, and the Company, Merger Sub, the Seller Representative or any of their
respective Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort,
equity or any other theory of legal liability (collectively, the “Released Claims”). Each of the Company, Merger
Sub and the Seller Representative on behalf of itself and its Affiliates hereby irrevocably waives any Released Claims that any such
Party or any of its Affiliates may have against the Trust Account (including any distributions therefrom) now or in the future and will
not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged
breach of this Agreement or any other agreement with Purchaser or its Affiliates). The Company, Merger Sub and the Seller Representative
each agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by Purchaser and
its Affiliates to induce Purchaser to enter in this Agreement, and each of the Company, Merger Sub and the Seller Representative further
intends and understands such waiver to be valid, binding and enforceable against such Party and each of its Affiliates under applicable
Law. To the extent that the Company, Merger Sub or the Seller Representative or any of their respective Affiliates commences any Action
based upon, in connection with, relating to or arising out of any matter relating to Purchaser or its Representatives, which proceeding
seeks, in whole or in part, monetary relief against Purchaser or its Representatives, each of the Company, Merger Sub and the Seller
Representative hereby acknowledges and agrees that its and its Affiliates’ sole remedy shall be against funds held outside of the
Trust Account and that such claim shall not permit such Party or any of its Affiliates (or any Person claiming on behalf or in lieu of
any of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. In
the event that the Company, Merger Sub or the Seller Representative or any of their respective Affiliates commences Action based upon,
in connection with, relating to or arising out of any matter relating to Purchaser or its Representatives which proceeding seeks, in
whole or in part, relief against the Trust Account (including any distributions therefrom) or the Public Stockholders, whether in the
form of money damages or injunctive relief, Purchaser and its Representatives, as applicable, shall be entitled to recover from the Company,
Merger Sub, the Seller Representative and their respective Affiliates, as applicable, the associated legal fees and costs in connection
with any such Action, in the event Purchaser or its Representatives, as applicable, prevails in such Action. This Section 8.1
shall survive termination of this Agreement for any reason and continue indefinitely.
Article
IX
Miscellaneous
9.1.
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, (iii) one Business Day after being sent, if sent by reputable, nationally recognized
overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return
receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be
specified by like notice):
If
to the Purchaser or Merger Sub at or prior to the Closing, to:
PowerUp
Acquisition Corp.
1200
Broadway, Floor 3
New
York, NY 10038
Attn:
Suren Ajjarapu
Telephone
No.: (646) 908-2658
Email:
suren@sriramaassociatesllc.onmicrosoft.com |
|
with
a copy (which will not constitute notice) to:
Dykema
Gossett PLLC
111
E. Kilbourn Ave., Suite 1050
Milwaukee,
WI 53202
Attn:
Kate Bechen
Facsimile
No.: (866) 945-9792
Telephone
No.: (414) 488-7333
Email:
kbechen@dykema.com |
| |
|
|
If
to the Sponsor, to:
SRIRAMA
Associates, LLC
515
Madison Avenue, Suite 8078
New
York, New York 10022
Attn:
Suren Ajjarapu
Telephone
No.: (646) 908-2658
Email:
suren@sriramaassociatesllc.onmicrosoft.com |
|
with
a copy (which will not constitute notice) to:
Dykema
Gossett PLLC
111
E. Kilbourn Ave., Suite 1050
Milwaukee,
WI 53202
Attn:
Kate Bechen
Facsimile
No.: (866) 945-9792
Telephone
No.: (414) 488-7333
Email:
kbechen@dykema.com |
| |
|
|
If
to the Company or the Surviving Corporation, to:
Aspire
Biopharma, Inc.
194
Candelero Drive, #223
Humacao,
Puerto Rico 00791
Attn:
Kraig Higginson
Email:
kraig@kittsgroup.com
cc:
Ernest J. Scheidemann
Email:
escheidemann@aspire-biopharma.com |
|
with
a copy (which will not constitute notice) to:
Sichenzia
Ross Ference Carmel LLP
1185
Avenue of Americas
New
York, NY 10036
Attn:
Arthur Marcus
Email:
amarcus@srfc.law |
| |
|
|
If
to the Seller Representative, to:
Stephen
Quesenberry, Esq.
197
E 100 N, Suite A
Payson,
UT 84651
steve@kittsgroup.com |
|
|
9.2.
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 Purchaser and the Company (and after the Closing, the Purchaser Representative and the Seller
Representative), and any assignment without such consent shall be null and void; provided that no such assignment shall relieve
the assigning Party of its obligations hereunder.
9.3.
Third Parties. Except for the rights of the Purchaser D&O Indemnified Persons set forth in Section 5.18, which the
Parties acknowledge and agree are express third party beneficiaries of this Agreement, nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be
deemed to have been executed for the benefit of, any Person that is not a Party hereto or thereto or a successor or permitted assign
of such a Party.
9.4.
Arbitration. Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary
injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this Section 9.4) arising
out of, related to, or in connection with this Agreement or the transactions contemplated hereby (a “Dispute”)
shall be governed by this Section 9.4. A Party must, in the first instance, provide written notice of any Disputes to the other Parties
subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The Parties
involved in such Dispute shall seek to resolve the Dispute on an amicable basis within ten (10) Business Days of the notice of such Dispute
being received by such other Parties subject to such Dispute (the “Resolution Period”); provided, that
if any Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the
occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during
the Resolution Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing Expedited Procedures
(as defined in the AAA Procedures) of the Commercial Arbitration Rules (the “AAA Procedures”) of the AAA. Any
Party involved in such Dispute may submit the Dispute to the AAA to commence the proceedings after the Resolution Period. To the extent
that the AAA Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall be conducted
by one arbitrator nominated by the AAA promptly (but in any event within five (5) Business Days) after the submission of the Dispute
to the AAA and reasonably acceptable to each party subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial
experience arbitrating disputes under acquisition or merger agreements. The arbitrator shall accept his or her appointment and begin
the arbitration process promptly (but in any event within five (5) Business Days) after his or her nomination and acceptance by the Parties
subject to the Dispute. The proceedings shall be streamlined and efficient. The arbitrator shall decide the Dispute in accordance with
the substantive law of the state of Delaware. Time is of the essence. Each Party subject to the Dispute shall submit a proposal for resolution
of the Dispute to the arbitrator within twenty (20) days after confirmation of the appointment of the arbitrator. The arbitrator shall
have the power to order any party to do, or to refrain from doing, anything consistent with this Agreement, the Ancillary Documents and
applicable Law, including to perform its contractual obligation(s); provided, that the arbitrator shall be limited to ordering
pursuant to the foregoing power (and, for the avoidance of doubt, shall order) the relevant Party (or Parties, as applicable) to comply
with only one or the other of the proposals. The arbitrator’s award shall be in writing and shall include a reasonable explanation
of the arbitrator’s reason(s) for selecting one or the other proposal. The seat of arbitration shall be in New York County, State
of New York. The language of the arbitration shall be English.
9.5.
Governing Law; Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State
of Delaware without regard to the conflict of laws principles thereof. All Actions arising out of or relating to this Agreement shall
be heard and determined exclusively in any state or federal court located in Delaware (or in any appellate court thereof) (the “Specified
Courts”). Each Party (a) submits to the exclusive jurisdiction of any Specified Court for the purpose of any Action arising
out of or relating to this Agreement brought by any Party and (b) irrevocably waives, and agrees not to assert by way of motion, defense
or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the
Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Court.
Each Party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by Law. Each Party irrevocably consents to the service of the summons and complaint and any other process
in any other Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery
of copies of such process to such Party at the applicable address set forth in Section 9.1. Nothing in this Section 9.5
shall affect the right of any Party to serve legal process in any other manner permitted by Law.
9.6.
WAIVER OF JURY TRIAL. EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 9.6.
9.7.
Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby
are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and
the non-breaching Parties may have not adequate remedy at law, and agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise
breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement
and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to
prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled
under this Agreement, at law or in equity.
9.8.
Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such
provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal
and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or
impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction.
Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute
for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal
and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
9.9.
Amendment. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Purchaser,
the Company, the Purchaser Representative and the Seller Representative.
9.10.
Waiver. The Purchaser on behalf of itself and its Affiliates, the Company on behalf of itself and its Affiliates, and the Seller
Representative on behalf of itself and the Company Stockholders, may in its sole discretion (i) extend the time for the performance of
any obligation or other act of any other non-Affiliated Party , (ii) waive any inaccuracy in the representations and warranties by such
other non-Affiliated Party contained herein or in any document delivered pursuant to this Agreement and (iii) waive compliance by such
other non-Affiliated Party with any covenant or condition contained herein. Any such extension or waiver shall be valid only if set forth
in an instrument in writing signed by the Party or Parties to be bound thereby (including by the Purchaser Representative or the Seller
Representative in lieu of such Party to the extent provided in this Agreement). Notwithstanding the foregoing, no failure or delay by
a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise of any other right hereunder. Notwithstanding the foregoing, any waiver of any provision of this Agreement
after the Closing shall also require the prior written consent of the Purchaser Representative.
9.11.
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 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.
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 stockholders under the DGCL, as then applicable, or its Organizational Documents. The Parties have participated
jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties, 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.
9.13.
Counterparts. This Agreement and each Ancillary Document may be executed and delivered (including by facsimile or other electronic
transmission) in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one and the same agreement.
9.14.
Purchaser Representative.
(a)
The Purchaser, on behalf of itself and its Subsidiaries, successors and assigns, by execution and delivery of this Agreement, hereby
irrevocably appoints the Sponsor, in the capacity as the Purchaser Representative, as each such Person’s agent, attorney-in-fact
and representative, with full power of substitution to act in the name, place and stead of such Person, to act on behalf of such Person
from and after the Closing in connection with: (i) terminating, amending or waiving on behalf of such Person any provision of this Agreement
or any Ancillary Documents to which the Purchaser Representative is a party or otherwise has rights in such capacity (together with this
Agreement, the “Purchaser Representative Documents”); (ii) signing on behalf of such Person any releases or
other documents with respect to any dispute or remedy arising under any Purchaser Representative Documents; (iii) employing and obtaining
the advice of legal counsel, accountants and other professional advisors as the Purchaser Representative, in its reasonable discretion,
deems necessary or advisable in the performance of its duties as the Purchaser Representative and to rely on their advice and counsel;
(iv) incurring and paying reasonable out-of-pocket costs and expenses, including fees of brokers, attorneys and accountants incurred
pursuant to the transactions contemplated hereby, and any other out-of-pocket fees and expenses allocable or in any way relating to such
Purchaser Representative Documents, including giving and receiving all notices and communications hereunder or thereunder on behalf of
such Person; provided, that the Parties acknowledge that the Purchaser Representative is specifically authorized and directed
to act on behalf of, and for the benefit of, the holders of Purchaser Securities (other than the Company Security Holders immediately
prior to the Effective Time and their respective successors and assigns). All decisions and actions by the Purchaser Representative,
including any agreement between the Purchaser Representative and the Company, Seller Representative, any Company Stockholders, shall
be binding upon the Purchaser and its Subsidiaries, successors and assigns, and neither they nor any other Party shall have the right
to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.14 are irrevocable and coupled with
an interest. The Purchaser Representative hereby accepts its appointment and authorization as the Purchaser Representative under this
Agreement.
(b)
The Purchaser Representative shall not be liable for any act done or omitted under any Purchaser Representative Document as the Purchaser
Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to
the advice of counsel shall be conclusive evidence of such good faith. The Purchaser shall indemnify, defend and hold harmless the Purchaser
Representative from and against any and all Losses incurred without gross negligence, bad faith or willful misconduct on the part of
the Purchaser Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the
Purchaser Representative’s duties under any Purchaser Representative Document, including the reasonable fees and expenses of any
legal counsel retained by the Purchaser Representative. In no event shall the Purchaser Representative in such capacity be liable under
or in connection with any Purchaser Representative Document for any indirect, punitive, special or consequential damages. The Purchaser
Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes
to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Purchaser Representative
in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Purchaser Representative shall
have the right at any time and from time to time to select and engage, at the cost and expense of the Purchaser, attorneys, accountants,
investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such
records and incur other out-of-pocket expenses, as the Purchaser Representative may deem necessary or appropriate from time to time.
All of the indemnities, immunities, releases and powers granted to the Purchaser Representative under this Section 9.14 shall
survive the Closing and continue indefinitely.
(c)
The Person serving as the Purchaser Representative may resign upon ten (10) days’ prior written notice to the Purchaser and the
Seller Representative, provided, that the Purchaser Representative appoints in writing a replacement Purchaser Representative. Each successor
Purchaser Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original
Purchaser Representative, and the term “Purchaser Representative” as used herein shall be deemed to include any such successor
Purchaser Representatives.
9.15.
Seller Representative.
(a)
Each Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably
constitutes and appoints Stephen Quesenberry, in the capacity of Seller Representative, as the true and lawful agent and attorney-in-fact
of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf
of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party
or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”),
as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such
documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of
the transactions contemplated under the Seller Representative Documents, including: (i) terminating, amending or waiving on behalf of
such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations
of the Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to
all Company Stockholders unless otherwise agreed by each Company Stockholder who is subject to any disparate treatment of a potentially
material and adverse nature); (ii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy
arising under any Seller Representative Document; (iii) employing and obtaining the advice of legal counsel, accountants and other professional
advisors as the Seller Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties as
the Seller Representative and to rely on their advice and counsel; (iv) incurring and paying reasonable costs and expenses, including
fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and
expenses allocable or in any way relating to such transaction, whether incurred prior or subsequent to Closing; (v) receiving all or
any portion of the consideration provided to the Company Stockholders under this Agreement and to distribute the same to the Company
Stockholders in accordance with their Pro Rata Share; and (vi) otherwise enforcing the rights and obligations of any such Persons under
any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of
such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the
Purchaser Representative or the Purchaser shall be binding upon each Company Stockholder and their respective successors and assigns,
and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of
this Section 9.15 are irrevocable and coupled with an interest. The Seller Representative hereby accepts its appointment and authorization
as the Seller Representative under this Agreement.
(b)
Any other Person, including the Purchaser Representative, the Purchaser and the Company may conclusively and absolutely rely, without
inquiry, upon any actions of the Seller Representative as the acts of the Company Stockholders under any Seller Representative Documents.
The Purchaser Representative, the Purchaser and the Company shall be entitled to rely conclusively on the instructions and decisions
of the Seller Representative as to (i) any payment instructions provided by the Seller Representative or (ii) any other actions required
or permitted to be taken by the Seller Representative hereunder, and no Company shall have any cause of action against the Purchaser
Representative, the Purchaser or the Company for any action taken by any of them in reliance upon the instructions or decisions of the
Seller Representative. The Purchaser Representative, the Purchaser and the Company shall not have any Liability to any Company Stockholder
for any allocation or distribution among the Company Stockholders by the Seller Representative of payments made to or at the direction
of the Seller Representative. All notices or other communications required to be made or delivered to a Company Stockholder under any
Seller Representative Document shall be made to the Seller Representative for the benefit of such Company Stockholder, and any notices
so made shall discharge in full all notice requirements of the other parties hereto or thereto to such Company Stockholder with respect
thereto. All notices or other communications required to be made or delivered by a Company Stockholder shall be made by the Seller Representative
(except for a notice under Section 9.15(d) of the replacement of the Seller Representative).
(c)
The Seller Representative will act for the Company Stockholders on all of the matters set forth in this Agreement in the manner the Seller
Representative believes to be in the best interest of the Company Stockholders, but the Seller Representative will not be responsible
to the Company Stockholders for any Losses that any Company Stockholder may suffer by reason of the performance by the Seller Representative
of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful
misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Company
Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses
reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity
as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under
any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative.
In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive,
special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative
Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done
or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully
protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including
facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner.
In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time
and from time to time to select and engage, at the reasonable cost and expense of the Company Stockholders, attorneys, accountants, investment
bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records
and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time
to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.15
shall survive the Closing and continue indefinitely.
(d)
If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities
as representative and agent of Company Stockholders, then the Company Stockholders shall, within ten (10) days after such death, disability,
dissolution, resignation or other event, appoint a successor Seller Representative (by vote or written consent of the Company Stockholders
holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2)
Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor.
Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
9.16.
Legal Representation. The Parties agree that, notwithstanding the fact that Dykema Gossett PLLC may have, prior to Closing, jointly
represented the Purchaser, Merger Sub, the Purchaser Representative and/or the Sponsor in connection with this Agreement, the Ancillary
Documents and the transactions contemplated hereby and thereby, and has also represented the Purchaser and/or its Affiliates in connection
with matters other than the transaction that is the subject of this Agreement, Dykema Gossett PLLC will be permitted in the future, after
Closing, to represent the Sponsor, the Purchaser Representative or their respective Affiliates in connection with matters in which such
Persons are adverse to the Purchaser or any of its Affiliates, including any disputes arising out of, or related to, this Agreement.
The Company and the Seller Representative, who are or have the right to be represented by independent counsel in connection with the
transactions contemplated by this Agreement, hereby agree, in advance, to waive (and to cause their Affiliates to waive) any actual or
potential conflict of interest that may hereafter arise in connection with Dykema Gossett PLLC’s future representation of one or
more of the Sponsor, the Purchaser Representative or their respective Affiliates in which the interests of such Person are adverse to
the interests of the Purchaser, the Company and/or the Seller Representative or any of their respective Affiliates, including any matters
that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by Dykema Gossett
PLLC of the Purchaser, Merger Sub, any Sponsor, the Purchaser Representative or any of their respective Affiliates. The Parties acknowledge
and agree that, for the purposes of the attorney-client privilege, the Sponsor and the Purchaser Representative shall be deemed the clients
of Dykema Gossett PLLC with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All
such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto
shall belong solely to the Sponsor and the Purchaser Representative, shall be controlled by the Sponsor and the Purchaser Representative
and shall not pass to or be claimed by Purchaser or the Surviving Corporation; provided, further, that nothing contained herein
shall be deemed to be a waiver by the Purchaser or any of its Affiliates (including, after the Effective Time, the Surviving Corporation
and its Affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications
to any third party.
9.17.
Non-Survival of Representations, Warranties. The representations and warranties of the Company and Purchaser contained in this
Agreement or in any certificate or instrument delivered by or on behalf of the Company or the Purchaser pursuant to this Agreement shall
not survive the Closing, and from and after the Closing, the Company and the Purchaser and their respective Representatives shall not
have any further obligations, nor shall any claim be asserted or action be brought against the Company or the Purchaser or their respective
Representatives with respect thereto. The covenants and agreements made by the Company and the Purchaser in this Agreement or in any
certificate or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such covenants or agreements,
shall not survive the Closing, except for those covenants and agreements contained herein and therein that by their terms apply or are
to be performed in whole or in part after the Closing (which such covenants shall survive the Closing and continue until fully performed
in accordance with their terms).
Article
X
Definitions
10.1.
Certain Definitions. For purpose of this Agreement, the following capitalized terms have the following meanings:
“Accounting
Principles” means in accordance with GAAP as in effect at the date of the financial statement to which it refers or if
there is no such financial statement, then as of the Closing Date, using and applying the same accounting principles, practices, procedures,
policies and methods (with consistent classifications, judgments, elections, inclusions, exclusions and valuation and estimation methodologies)
used and applied by the Company in the preparation of the Audited Company Financials.
“Action”
means any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint,
stipulation, assessment or arbitration, or any request (including any request for information), inquiry, hearing, proceeding or investigation,
by or before any Governmental Authority.
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such
Person. For the avoidance of doubt, Sponsor shall be deemed to be an Affiliate or the Purchaser prior to the Closing
“Ancillary
Documents” means each agreement, instrument or document attached hereto as an Exhibit, and the other agreements, certificates
and instruments to be executed or delivered by any of the Parties hereto in connection with or pursuant to this Agreement.
“Benefit
Plans” of any Person means any and all deferred compensation, executive compensation, incentive compensation, equity purchase
or other equity-based compensation plan, employment, 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 material employee benefit plan, program, agreement or arrangement,
including each “employee benefit plan” as such term is defined under Section 3(3) of ERISA, maintained or contributed to
or required to be contributed to by a Person for the benefit of any employee or terminated employee of such Person, or with respect to
which such Person has any Liability.
“Business
Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York,
New York are authorized to close for business, excluding as a result of “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
authority so long as the electronic funds transfer systems, including for wire transfers, of commercial banking institutions in New York,
New York are generally open for use by customers on such day.
“Code”
means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as amended. Reference to a specific section of
the Code shall include such section and any valid treasury regulation promulgated thereunder.
“Company
Benefit Plan” means a Benefit Plan of the Company.
“Company
Charter” means the Certificate of Incorporation of the Company, as amended and effective under the DGCL, prior to the Effective
Time.
“Company
Common Stock” means the voting common stock, par value $0.001 per share, of the Company after the Company Domestication.
“Company
Confidential Information” means all confidential or proprietary documents and information concerning the Company or any
of their respective Representatives, furnished in connection with this Agreement or the transactions contemplated hereby; provided,
however, that Company Confidential Information shall not include any information which, (i) at the time of disclosure by the Purchaser
or its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (ii) at the time of the
disclosure by the Company or its Representatives to the Purchaser or its Representatives was previously known by such receiving party
without violation of Law or any confidentiality obligation by the Person receiving such Company Confidential Information.
“Company
IT Systems” means all computer systems, computer software and hardware, communication systems, servers, network equipment
and related documentation, in each case, owned, licensed or leased by the Company.
“Company
Preferred Stock” means the shares of preferred stock, par value $0.001 per share, of the Company after the Company Domestication,
including the Company Series A Preferred Stock and any authorized undesignated preferred stock.
“Company
Securities” means the Company Stock.
“Company
Security Holders” means, collectively, the holders of Company Securities.
“Company
Series A Preferred Stock” means the shares of Series A preferred stock, par value $0.0001 per share, of the Company after
the Company Domestication.
“Company
Stock” means any shares of the Company Common Stock and Company Preferred Stock.
“Company
Stockholders” means, collectively, the holders of Company Stock immediately prior to the Effective Time, but after giving
effect to the Preferred Conversion and the Company Warrant Termination.
“Company
Transaction Expenses” means all fees and expenses of any of the Company incurred or payable as of the Closing and not paid
prior to the Closing (i) in connection with the consummation of the transactions contemplated hereby, including any amounts payable to
professionals (including investment bankers, brokers, finders, attorneys, accountants and other consultants and advisors) retained by
or on behalf of the Company, (ii) any sales, use, real property transfer, stamp, stock transfer or other similar transfer Taxes imposed
on the Company in connection with the Merger or the other transactions contemplated by this Agreement, and (iii) in connection with the
Company’s prior attempt at completing an initial public offering or SPAC transaction, including any amounts payable to professionals
(including investment bankers, brokers, finders, attorneys, accountants and other consultants and advisors) retained by or on behalf
of the Company in connection with the Company’s attempted initial public offering or SPAC transaction. “Company Transaction
Expenses” shall also include (x) any costs and expenses incurred in connection with the Company obtaining the Company D&O Tail
Insurance, and (y) payoff of any Future Working Capital Loans.
“Consent”
means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with any Governmental Authority
or any other Person.
“Contracts”
means all contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses
(and all other contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments
or obligations of any kind, written or oral (including any amendments and other modifications thereto).
“Control”
of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by contract, or otherwise. “Controlled”, “Controlling”
and “under common Control with” have correlative meanings. Without limiting the foregoing a Person (the “Controlled
Person”) shall be deemed Controlled by (a) any other Person (i) owning beneficially, as meant in Rule 13d-3 under the Exchange
Act, securities entitling such Person to cast ten percent (10%) or more of the votes for election of directors or equivalent governing
authority of the Controlled Person or (ii) entitled to be allocated or receive ten percent (10%) or more of the profits, losses, or distributions
of the Controlled Person; (b) an officer, director, general partner, partner (other than a limited partner), manager, or member (other
than a member having no management authority that is not a Person described in clause (a) above) of the Controlled Person; or (c) a spouse,
parent, lineal descendant, sibling, aunt, uncle, niece, nephew, mother-in-law, father-in-law, sister-in-law, or brother-in-law of an
Affiliate of the Controlled Person or a trust for the benefit of an Affiliate of the Controlled Person or of which an Affiliate of the
Controlled Person is a trustee.
“Copyrights”
means any works of authorship, mask works and all copyrights therein, including all renewals and extensions, copyright registrations
and applications for registration and renewal, and non-registered copyrights.
“Environmental
Law” means any Law in any way relating to (a) the protection of human health and safety, (b) the protection, preservation
or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply,
surface land, subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use, storage, recycling,
treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Materials, including
the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC. Section 9601 et. seq., the Resource Conservation and
Recovery Act, 42 USC. Section 6901 et. seq., the Toxic Substances Control Act, 15 USC. Section 2601 et. seq., the Federal Water Pollution
Control Act, 33 USC. Section 1151 et seq., the Clean Air Act, 42 USC. Section 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide
Act, 7 USC. Section 111 et. seq., Occupational Safety and Health Act, 29 USC. Section 651 et. seq. (to the extent it relates to exposure
to Hazardous Substances), the Asbestos Hazard Emergency Response Act, 15 USC. Section 2601 et. seq., the Safe Drinking Water Act, 42
USC. Section 300f et. seq., the Oil Pollution Act of 1990 and analogous applicable foreign Laws.
“Environmental
Liabilities” means, in respect of any Person, all Liabilities, obligations, responsibilities, Remedial Actions, 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.
“ERISA”
means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange
Ratio” is the ratio represented by the number of shares of Purchaser Common Stock to be issued for each share of issued
and outstanding Company Common Stock (assuming the Preferred Conversion) in connection with the Merger.
“FDA”
means the U.S. Food and Drug Administration (or any successor Governmental Authority).
“FDA
Laws” means the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.) and its implementing regulations and
guidance documents and the Public Health Service Act (42 U.S.C. § 201 et seq.) and its implementing regulations and guidance documents.
“Fraud
Claim” means any claim based in whole or in part upon fraud, willful misconduct or intentional misrepresentation.
“GAAP”
means generally accepted accounting principles as in effect in the United States of America.
“Governmental
Authority” means any federal, state, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality,
department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving
panel or body.
“Hazardous
Material” means any waste, gas, liquid or other substance or material that is defined, listed or designated as a “hazardous
substance”, “pollutant”, “contaminant”, “hazardous waste”, “regulated substance”,
“hazardous chemical”, or “toxic chemical” (or by any similar term) under any Environmental Law, or any other
material regulated, or that could result in the imposition of Liability or responsibility, under any Environmental Law, including petroleum
and its by-products, asbestos, polychlorinated biphenyls, radon, mold, and urea formaldehyde insulation.
“Indebtedness”
of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including the outstanding principal
and accrued but unpaid interest), (b) all obligations for the deferred purchase price of property or services (other than trade payables
incurred in the ordinary course of business), (c) any other indebtedness of such Person that is evidenced by a note, bond, debenture,
credit agreement or similar instrument, (d) all obligations of such Person under leases that should be classified as capital leases in
accordance with GAAP, (e) all obligations of such Person for the reimbursement of any obligor on any line or letter of credit, banker’s
acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (f) all obligations of such
Person in respect of acceptances issued or created, (g) all interest rate and currency swaps, caps, collars and similar agreements or
hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency,
(h) all obligations secured by an Lien on any property of such Person, (i) any premiums, prepayment fees or other penalties, fees, costs
or expenses associated with payment of any Indebtedness of such Person and (j) all obligation described in clauses (a) through (i) above
of any other Person which is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise)
to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
“INDs”
means investigational new drug applications for FDA authorization to administer an investigational drug to humans.
“Intellectual
Property” means all of the following as they exist in any jurisdiction throughout the world: Patents, Trademarks, Copyrights,
Trade Secrets, Internet Assets, Software and other intellectual property, and all licenses, sublicenses and other agreements or permissions
related to the preceding property.
“Internet
Assets” means any and all domain name registrations, web sites and web addresses and related rights, items and documentation
related thereto, and applications for registration therefor.
“IPO”
means the initial public offering of Purchaser Public Units pursuant to the IPO Prospectus.
“IPO
Prospectus” means the final prospectus of the Purchaser, dated as of February 17, 2022, and filed with the SEC on February
22, 2022.
“IRS”
means the U.S. Internal Revenue Service (or any successor Governmental Authority).
“Key
Employees” means, with respect to the Company, Chief Executive Officer Kraig Higginson, Chief Financial Officer Ernest
Scheidemann, and General Counsel Stephen Quesenberry.
“Knowledge”
means, with respect to (i) the Company, the actual knowledge of the executive officers or directors of the Company, after reasonable
inquiry or (ii) any other Party, (A) if an entity, the actual knowledge of its directors and executive officers, after reasonable inquiry,
or (B) if a natural person, the actual knowledge of such Party after reasonable inquiry.
“Law”
means any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict,
decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that
is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the
authority of any Governmental Authority.
“Liabilities”
means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether absolute, accrued, contingent or otherwise,
whether known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required
to be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards), including Tax liabilities due or
to become due.
“Lien”
means any mortgage, pledge, security interest, attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether
on voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, or any filing or agreement
to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Losses”
means any and all losses, damages, Liabilities, Taxes, deficiencies, obligations, claims, costs, interest, awards, judgments, fines,
charges, penalties, settlement payments, expenses (including reasonable out-of-pocket expenses of investigation, enforcement and collection
and reasonable out-of-pocket attorneys’, actuaries’, accountants’ and other professionals’ fees, disbursements
and expenses) of any kind; provided, however, that “Losses” shall not include lost profits, lost revenues,
business interruption, loss of business reputation or opportunity, diminution in value, consequential, indirect, incidental, special,
unforeseen exemplary or punitive damages, or any damages based upon any type of multiple, except to the extent (a) in the case of exemplary
or punitive damages to the extent paid to an unaffiliated third party or (b) in the case of consequential damages, reasonably foreseeable;
provided, further, that, for avoidance of doubt, “Losses” shall not include any changes in and of themselves
in the price of Purchaser Common Stock as reported on Nasdaq or NYSE.
“Material
Adverse Effect” means, with respect to any specified Person, any fact, event, occurrence, change or effect that has had,
or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (a) the business, assets, Liabilities,
results of operations, prospects or condition (financial or otherwise) of such Person and its Subsidiaries, taken as a whole, or (b)
the ability of such Person or any of its Subsidiaries on a timely basis to consummate the transactions contemplated by this Agreement
or the Ancillary Documents to which it is a party or bound or to perform its obligations hereunder or thereunder; provided, however,
that for purposes of clause (a) above, any changes or effects directly or indirectly attributable to, resulting from, relating to or
arising out of the following (by themselves or when aggregated with any other, changes or effects) shall not be deemed to be, constitute,
or be taken into account when determining whether there has or may, would or could have occurred a Material Adverse Effect: (i) general
changes in the financial or securities markets or general economic or political conditions in the country or region in which such Person
or any of its Subsidiaries do business; (ii) changes, conditions or effects that generally affect the industries in which such Person
or any of its Subsidiaries principally operate; (iii) changes in GAAP or other applicable accounting principles or mandatory changes
in the regulatory accounting requirements applicable to any industry in which such Person and its Subsidiaries principally operate; (iv)
conditions caused by acts of God, terrorism, war (whether or not declared) or natural disaster; (v) any failure in and of itself by such
Person and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions of financial performance
for any period (provided that the underlying cause of any such failure may be considered in determining whether a Material Adverse Effect
has occurred or would reasonably be expected to occur to the extent not excluded by another exception herein) and (vi), with respect
to the Purchaser, the consummation and effects of the Redemption; provided further, however, that any event, occurrence, fact,
condition, or change referred to in clauses (i) - (iv) immediately above shall be taken into account in determining whether a Material
Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition, or change
has a disproportionate effect on such Person or any of its Subsidiaries compared to other participants in the industries in which such
Person or any of its Subsidiaries primarily conducts its businesses. Notwithstanding the foregoing, with respect to the Purchaser, the
amount of the Redemption or the failure to obtain the Required Purchaser Stockholder Approval shall not be deemed to be a Material Adverse
Effect on or with respect to the Purchaser.
“Merger
Consideration” means (a) $316,800,000 less (b) the amount by which the Company’s cash at Closing is less than the
Minimum Cash Condition (but only in the event the Minimum Cash Condition is waived by Purchaser), if any, less (c) Company Indebtedness
at Closing.
“Merger
Sub Common Stock” means the shares of common stock, par value $0.001 per share, of Merger Sub.
“Nasdaq”
means the Nasdaq Capital Market.
“NYSE”
means the New York Stock Exchange.
“Old
Company Common Stock” means the voting common stock, par value $0.001 per share, of the Company prior to the Company
Domestication.
“Old
Company Preferred Stock” means the shares of preferred stock, par value $0.0001 per share, of the Company prior to the
Company Domestication, including the Old Company Series A Preferred Stock and any authorized undesignated preferred stock.
“Old
Company Stock” means any shares of the Old Company Common Stock and Old Company Preferred Stock.
“Old
Purchaser Class A Ordinary Shares” means the Class A ordinary shares, par value $0.0001 per share, of the Purchaser, along
with any equity securities paid as dividends or distributions after the Closing with respect to such shares or into which such shares
are exchanged or converted after the Closing.
“Old
Purchaser Class B Ordinary Shares” means the Class B ordinary shares, par value $0.0001 per share, of the Purchaser.
“Old
Purchaser Ordinary Shares” means the shares of Old Purchaser Class A Ordinary Shares and Old Purchaser Class B Ordinary
Shares, collectively.
“Old
Purchaser Preference Shares” means the preference shares, par value $0.0001 per share, of the Purchaser.
“Old
Purchaser Private Warrant” means one (1) whole warrant entitling the holder thereof to purchase one (1) Purchaser Class
A Ordinary Share at a purchase price of $11.50 per share.
“Old
Purchaser Public Units” means the units issued in the IPO (including overallotment units acquired by Purchaser’s
underwriter) consisting of one (1) Purchaser Class A Ordinary Share and one-half (1/2) of
one (1) Purchaser Public Warrant.
“Old
Purchaser Public Warrant” means one (1) whole warrant, of which one-half (1/2) of one (1) was included as part of each
Purchaser Public Unit, entitling the holder thereof to purchase one (1) Purchaser Class A Ordinary Share at a purchase price of $11.50
per share.
“Old
Purchaser Securities” means the Old Purchaser Public Units, the Old Purchaser Ordinary Shares, the Old Purchaser Preference
Shares and the Old Purchaser Warrants, collectively.
“Old
Purchaser Warrants” means the Old Purchaser Private Warrants and Old Purchaser Public Warrants, collectively.
“Order”
means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action
that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational
Documents” means, with respect to any Person that is an entity, its certificate of incorporation or formation, bylaws,
operating agreement, memorandum and articles of association or similar organizational documents, in each case, as amended.
“Patents”
means any patents, patent applications and the inventions, designs and improvements described and claimed therein, patentable inventions,
and other patent rights (including any divisionals, provisionals, continuations, continuations-in-part, substitutions, or reissues thereof,
whether or not patents are issued on any such applications and whether or not any such applications are amended, modified, withdrawn,
or refiled).
“PCAOB”
means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“Per
Share Price” means Ten and No/100 Dollars ($10.00).
“Permits”
means all federal, state, local or foreign or other third-party permits, grants, easements, consents, approvals, authorizations, exemptions,
licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations,
ratings, registrations, qualifications or orders of any Governmental Authority or any other Person.
“Permitted
Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not delinquent
or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto,
(b) other Liens imposed by operation of Law arising in the ordinary course of business for amounts which are not due and payable and
as would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property
subject thereto, (c) Liens incurred or deposits made in the ordinary course of business in connection with social security, (d) Liens
on goods in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business, or (e)
Liens arising under this Agreement or any Ancillary Document.
“Person”
means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership),
limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political
subdivision thereof, or an agency or instrumentality thereof.
“Personal
Data” means any information relating to an identified or identifiable natural person (data subject); an identifiable natural
person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification
number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic,
cultural or social identity of that natural person.
“Personal
Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant,
parts and other tangible personal property.
“Prior
Working Capital Loans” means the loans from Sponsor to Purchaser set forth on Schedule 10.1 of the Purchaser Disclosure
Schedule.
“Privacy
Laws” means any applicable international, national, federal, provincial, state, or local law, code, rule or regulation
that regulates the processing of Personal Data in any way, including data protection laws, laws regulating marketing communications and/or
electronic communications, information security regulations and security breach notification rules.
“Proceeding”
means any action, suit, litigation, complaint, dispute, arbitration, mediation, proceeding (including any civil, criminal, administrative,
investigative or appellate proceeding), hearing, audit, inquiry, examination or investigation commenced, brought, conducted or heard
by or before, or otherwise involving, any court or other Governmental Authority.
“Pro
Rata Share” means with respect to each Company Stockholder, a fraction expressed as a percentage equal to (i) the portion
of the Merger Consideration payable by the Purchaser to such Company Stockholder in accordance with the terms of this Agreement, divided
by (ii) the total Merger Consideration payable by the Purchaser to all Company Stockholders in accordance with the terms of this Agreement.
“Protected
Health Information” has the meaning given to such term under the Health Insurance Portability and Accountability Act of
1996, including all such information in electronic form.
“Purchaser
Class A Common Stock” means the shares of Class A common stock, par value $0.0001 per share, of the Purchaser after Domestication,
along with any equity securities paid as dividends or distributions after the Closing with respect to such shares or into which such
shares are exchanged or converted after the Closing.
“Purchaser
Class B Common Stock” means the shares of Class B common stock, par value $0.0001 per share, of the Purchaser after Domestication.
“Purchaser
Common Stock” means the common stock, par value $0.0001 per share, of the Purchaser after Domestication and Conversion.
“Purchaser
Confidential Information” means all confidential or proprietary documents and information concerning the Purchaser or any
of its Representatives; provided, however, that Purchaser Confidential Information shall not include any information which, (i)
at the time of disclosure by the Company, the Seller Representative or any of their respective Representatives, is generally available
publicly and was not disclosed in breach of this Agreement or (ii) at the time of the disclosure by the Purchaser or its Representatives
to the Company, the Seller Representative or any of their respective Representatives, was previously known by such receiving party without
violation of Law or any confidentiality obligation by the Person receiving such Purchaser Confidential Information. For the avoidance
of doubt, from and after the Closing, Purchaser Confidential Information will include the confidential or proprietary information of
the Company.
“Purchaser
Expenses” means (i) all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers,
financial advisors, financing sources, experts and consultants to a Purchaser hereto or any of its Affiliates) incurred by Purchaser
or on its behalf in connection with or related to the authorization, preparation, negotiation, execution or performance of this Agreement
or any Ancillary Document related hereto and all other matters related to the consummation of this Agreement, including any and all deferred
expenses (including fees or commissions payable to the underwriters and any legal fees) of the IPO upon consummation of a Business Combination,
and any expenses relating to Hart-Scott-Rodino Act, SEC, Nasdaq or NYSE filing fees relating to this Transaction, (ii) any costs and
expenses incurred in connection with Purchaser obtaining the Purchaser D&O Tail Insurance, and (iii) payoff of the Prior Working
Capital Loans, all of which are set forth on Exhibit A hereto.
“Purchaser
Preferred Stock” means the shares of preferred stock, par value $0.0001 per share, of the Purchaser after Domestication.
“Purchaser
Private Warrant” means, after Domestication and the Conversion, one (1) whole warrant entitling the holder thereof to purchase
one (1) share of Purchaser Class A Common Stock at a purchase price of $11.50 per share.
“Purchaser
Public Units” means the units issued in the Domestication consisting of one (1) share of Purchaser Class A Common Stock
and one-half (1/2) of one (1) Purchaser Public Warrant.
“Purchaser
Public Warrant” means, after Domestication and the Conversion, one (1) whole warrant, of which one-half (1/2) of one (1)
was included as part of each Purchaser Public Unit, entitling the holder thereof to purchase one (1) share of Purchaser Class A Common
Stock at a purchase price of $11.50 per share.
“Purchaser
Securities” means the Purchaser Public Units, the Purchaser Common Stock, the Purchaser Preferred Stock and the Purchaser
Warrants, collectively.
“Purchaser
Warrants” means Purchaser Private Warrants and Purchaser Public Warrants, collectively.
“Reference
Time” means the close of business of the Company on the Closing Date (but without giving effect to the transactions contemplated
by this Agreement, including any payments by Purchaser hereunder to occur at the Closing, but treating any obligations in respect of
Indebtedness, Transaction Expenses or other liabilities that are contingent upon the consummation of the Closing as currently due and
owing without contingency as of the Reference Time).
“Release”
means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor
or outdoor environment, or into or out of any property.
“Remedial
Action” 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 a condition
of noncompliance with Environmental Laws.
“Representatives”
means, as to any Person, such Person’s Affiliates and the respective managers, directors, officers, employees, independent contractors,
consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person
or its Affiliates.
“SEC”
means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Securities
Act” means the Securities Act of 1933, as amended.
“Significant
Company Holder” means (i) all officers and directors of the Company, and (ii) all Company Stockholders that are beneficial
owners of at least 5% of the Company Stock.
“Software”
means any computer software programs, including all source code, object code, and documentation related thereto and all software modules,
tools and databases.
“SOX”
means the U.S. Sarbanes-Oxley Act of 2002, as amended.
“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.
“Tax
Return” means any return, declaration, report, claim for refund, information return or other documents (including any related
or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or
collection of any Taxes or the administration of any Laws or administrative requirements relating to any Taxes.
“Taxes”
means (a) all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added,
ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and
related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property,
windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever,
together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment
of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for
any period or otherwise through operation of law and (c) any Liability for the payment of amounts described in clauses (a) or (b) as
a result of any tax sharing, tax group, tax indemnity or tax allocation agreement with, or any other express or implied agreement to
indemnify, any other Person.
“Trade
Secrets” means any trade secrets, confidential business information, concepts, ideas, designs, research or development
information, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering
drawings, methods, know-how, data, mask works, discoveries, inventions, modifications, extensions, improvements, and other proprietary
rights (whether or not patentable or subject to copyright, trademark, or trade secret protection).
“Trademarks”
means any trademarks, service marks, trade dress, trade names, brand names, internet domain names, designs, logos, or corporate names
(including, in each case, the goodwill associated therewith), whether registered or unregistered, and all registrations and applications
for registration and renewal thereof.
“Trading
Day” means any day on which shares of Purchaser Common Stock are actually traded on the principal securities exchange or
securities market on which the Purchaser Common Stock are then traded.
“Trust
Account” means the trust account established by Purchaser with the proceeds from the IPO pursuant to the Trust Agreement
in accordance with the IPO Prospectus.
“Trust
Agreement” means that certain Investment Management Trust Agreement, effective as of February 17, 2022, as it may be amended,
by and between the Purchaser and the Trustee, as well as any other agreements entered into related to or governing the Trust Account.
“Trustee”
means American Stock Transfer & Trust Company, LLC, in its capacity as trustee under the Trust Agreement.
“Working
Capital Loans” means both the Prior Working Capital Loans and the Future Working Capital Loans.
10.2.
Section References. The following capitalized terms, as used in this Agreement, have the respective meanings given to them in
the Section as set forth below adjacent to such terms:
| Term |
|
Section |
|
Term |
|
Section |
| AAA
Procedures |
|
9.4 |
|
Lost
Certificate Affidavit |
|
1.11(d) |
| Accounts
Receivable |
|
4.7(f) |
|
Merger |
|
Recital
C |
| Acquisition
Proposal |
|
5.6(a) |
|
Merger
Sub |
|
Preamble |
| Agreement |
|
Preamble |
|
Minimum
Cash Condition |
|
6.5(f) |
| Alternative
Transaction |
|
5.6(a) |
|
Non-Competition
Agreement |
|
5.22 |
| Amended
Purchaser Charter |
|
1.8 |
|
OFAC |
|
3.19(c) |
| Antitrust
Laws |
|
5.9(b) |
|
Off-the-Shelf
Software |
|
4.13(a) |
| Audited
Company Financials |
|
4.7(a) |
|
Outbound
IP License |
|
4.13(c) |
| Business
Combination |
|
8.1 |
|
Outside
Date |
|
7.1(b) |
| Certificate
of Merger |
|
1.2 |
|
Party/Parties |
|
Preamble |
| Class
I Directors |
|
5.17(a) |
|
Platform
Agreements |
|
4.13(h) |
| Class
II Directors |
|
5.17(a) |
|
Post-Closing
Purchaser Board |
|
5.17(a) |
| Class
III Directors |
|
5.17(a) |
|
Pre-Closing
Company Capital Raise |
|
5.21 |
| Closing |
|
2.1 |
|
Preferred
Conversion |
|
1.10(e) |
| Closing
Date |
|
2.1 |
|
PRGCA |
|
Recital
F |
| Closing
Filing |
|
5.14(b) |
|
Proxy
Statement |
|
5.12(a) |
| Closing
Press Release |
|
5.14(b) |
|
Public
Certifications |
|
3.6(a) |
| Companies
Act |
|
Recital
E |
|
Public
Stockholders |
|
8.1 |
| Company |
|
Preamble |
|
Purchaser |
|
Preamble |
| Company
Bylaws |
|
Recital
H |
|
Purchaser
Bylaws |
|
Recital
G |
| Company
Certificates |
|
1.11(a) |
|
Purchaser
Certificate of Incorporation |
|
Recital
G |
| Company
Certificate of Incorporation |
|
Recital
H |
|
Purchaser
Directors |
|
5.12(a) |
| Company
Directors |
|
5.17(a) |
|
Purchaser
Disclosure Schedules |
|
Article
III |
| Company
Disclosure Schedules |
|
Article
IV |
|
Purchaser
D&O Indemnified Persons |
|
5.18(a) |
| Company
Domestication |
|
Recital
F |
|
Purchaser
D&O Tail Insurance |
|
5.18(b) |
| Company
D&O Indemnified Persons |
|
5.19(a) |
|
Purchaser
Equity Incentive Plan |
|
5.25 |
| Company
D&O Tail Insurance |
|
5.19(b) |
|
Purchaser
Financials |
|
3.6(b) |
| Company
Financials |
|
4.7(a) |
|
Purchaser
Material Contract |
|
3.13(a) |
| Company
IP |
|
4.13(d) |
|
Purchaser
Special Meeting |
|
5.12(a) |
| Company
IP Licenses |
|
4.13(a) |
|
Purchaser
Stockholder Approval Matters |
|
5.12(a) |
| Company
Material Contract |
|
4.12(a) |
|
Purchaser
Representative |
|
Preamble |
| Company
Permits |
|
4.10 |
|
Purchaser
Representative Documents |
|
9.14(a) |
| Company
Personal Property Leases |
|
4.16 |
|
Redemption |
|
5.12(a) |
| Company
Real Property Leases |
|
4.15 |
|
Registration
Statement |
|
5.12(a) |
| Company
Registered IP |
|
4.13(a) |
|
Related
Person |
|
4.21 |
| Company
Special Meeting |
|
5.13 |
|
Released
Claims |
|
8.1 |
| Company
Warrant |
|
4.3(a) |
|
Required
Company Stockholder Approval |
|
6.1(b) |
| Company
Warrant Termination |
|
1.10(d) |
|
Required
Purchaser Stockholder Approval |
|
6.1(a) |
| DGCL |
|
Recital
C |
|
Resolution
Period |
|
9.4 |
| Disclosure
Issue Notice |
|
5.26 |
|
SEC
Reports |
|
3.6(a) |
| Disclosure
Schedule Delivery Date |
|
5.26 |
|
Seller
Representative |
|
Preamble |
| Dispute |
|
9.4 |
|
Seller
Representative Documents |
|
9.15(a) |
| Dissenting
Shareholder |
|
1.14 |
|
Signing
Filing |
|
5.14(b) |
| Dissenting
Shares |
|
1.14 |
|
Signing
Press Release |
|
5.14(b) |
| Effective
Time |
|
1.2 |
|
SPAC
Conversion |
|
Recital
G |
| Employment
Laws |
|
4.18(b) |
|
SPAC
Domestication |
|
Recital
E |
| Enforceability
Exceptions |
|
3.2 |
|
Specified
Courts |
|
9.5 |
| Environmental
Permits |
|
4.20(a) |
|
Sponsor |
|
Preamble |
| Exchange
Agent |
|
1.11(a) |
|
Surviving
Corporation |
|
1.1 |
| Federal
Securities Laws |
|
5.7 |
|
Top
Customers |
|
4.24 |
| Future
Working Capital Loans |
|
5.3(b)(iv) |
|
Top
Suppliers |
|
4.24 |
| Interim
Balance Sheet Date |
|
4.7(a) |
|
Transaction |
|
Recital
I |
| Interim
Period |
|
5.1(a) |
|
Transmittal
Documents |
|
1.11(b) |
| Investment
Company Act |
|
3.16 |
|
|
|
|
| Letter
of Transmittal |
|
1.11(a) |
|
|
|
|
| Lock-Up
Agreement |
|
Recital
D |
|
|
|
|
IN
WITNESS WHEREOF, each Party has caused this Agreement to be signed and delivered as of the date first written above.
| |
The Purchaser: |
| |
|
|
| |
POWERUP ACQUISITION CORP. |
| |
|
|
| |
By: |
/s/ Surendra
Ajjarapu |
| |
Name: |
Surendra Ajjarapu |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
The Sponsor: |
| |
|
|
| |
SRIRAMA ASSOCIATES, LLC |
| |
|
|
| |
By: |
/s/ Surendra
Ajjarapu |
| |
Name: |
Surendra Ajjarapu |
| |
Title: |
President |
| |
|
|
| |
Merger Sub: |
| |
|
|
| |
POWERUP merger
Sub II, Inc. |
| |
|
|
| |
By: |
/s/ Surendra
Ajjarapu |
| |
Name: |
Surendra Ajjarapu |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
The Company: |
| |
|
|
| |
ASPIRE BIOPHARMA, INC. |
| |
|
|
| |
By: |
/s/ Kraig Higginson |
| |
Name: |
Kraig Higginson |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
The Seller Representative: |
| |
|
| |
|
/s/ Stephen
Quesenberry |
| |
|
Stephen Quesenberry |
PowerUp Acquisition (NASDAQ:PWUPU)
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De Oct 2024 a Nov 2024
PowerUp Acquisition (NASDAQ:PWUPU)
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De Nov 2023 a Nov 2024
