Form 8-K ECP Environmental Growth For: Jul 19

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 18, 2021

 

ECP ENVIRONMENTAL GROWTH OPPORTUNITIES CORP.

(Exact Name of Registrant as Specified in Charter)

 

 

 

(973) 671-6100
(Registrant’s telephone number, including area code)

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):

 

 

 

 

 

 

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Securities registered pursuant to Section 12(b) of the Act:

 

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.  ☐

 

 

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Item 1.01Entry into a Material Definitive Agreement

Merger Agreement

On July 18, 2021, ECP Environmental Growth Opportunities Corp., a Delaware corporation (“ENNV”), entered into an Agreement and Plan of Merger (“Merger Agreement”) by and among ENNV, ENNV Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of ENNV (“Merger Sub”), and Fast Radius, Inc., a Delaware corporation (“Fast Radius”), pursuant to which Merger Sub will merge with and into Fast Radius, with Fast Radius surviving such merger as a wholly owned subsidiary of ENNV (the “Merger” and, together with the other transactions contemplated by the Merger Agreement, the “Transactions”). At the closing of the Merger (the “Closing”), ENNV will be renamed “Fast Radius, Inc.” (ENNV, following the Closing, the “Combined Company”). The Transactions are expected to be consummated in the fourth quarter of 2021, subject to the fulfillment of certain conditions discussed herein. Capitalized terms used in this Current Report on Form 8-K (this “Report”) but not otherwise defined herein have the meanings given to them in the Merger Agreement.

The combined company is expected to have a post-transaction enterprise value of $995 million with an estimated equity value of $1.4 billion from the contribution of $445 million in gross cash proceeds from the Transaction, including $345 million of cash held in ENNV’s trust account (assuming no redemptions) and an additional $100 million fully committed private investment with certain accredited investors or qualified institutional buyers (collectively, the “PIPE Investors”), including, among others, UPS, Palantir and our sponsor, ENNV Holdings, LLC (the “Sponsor”), also including a $25 million forward purchase commitment from certain accounts managed by Goldman Sachs Asset Management, L.P. In connection with the Transactions, ENNV will issue up to 100,000,000 newly issued shares of Class A Common Stock, par value $0.0001 per share, of ENNV (“ENNV Class A Common Stock”), up to 90,000,000 shares of which will be issued or subject to ENNV awards at the Closing and 10,000,000 shares of which will be issuable upon the attainment of certain performance thresholds as described in more detail below.

Conversion of Securities

Pursuant to the Merger Agreement, immediately prior to the effective time of the Merger (the “Effective Time”), (i) the outstanding principal together with all accrued and unpaid interest on the issued and outstanding convertible notes of Fast Radius will automatically be converted into a number of shares of common stock of Fast Radius in accordance with the terms of the applicable note purchase agreements and (ii) each issued and outstanding warrant of Fast Radius will be exercised in full on a cashless basis in accordance with its terms.  

Pursuant to the Merger Agreement, at the Effective Time:

 

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Earn Out

During the five-year period following the date of the Closing (the “Earn Out Period”), the Combined Company may issue to eligible holders of securities of the Combined Company up to 10,000,000 additional shares of ENNV Class A Common Stock in the aggregate (which will be equitably adjusted on account of any subdivision, stock split, reverse stock split, stock dividend, combination, reclassification or similar equity restructuring transaction or any changes in the ENNV Class A Common Stock as a result of a merger, consolidation, reorganization, recapitalization, business combination or similar transaction involving the Combined Company) (the “Fast Radius Earn Out Shares”), in two equal tranches of 5,000,000 shares of ENNV Class A Common Stock, upon the satisfaction of certain price targets set forth in the Merger Agreement, which price targets will be based upon the (i) daily volume-weighted average sale price of shares of ENNV Class A Common Stock quoted on The Nasdaq Capital Market (“Nasdaq”), or the exchange on which the shares of ENNV Class A Common Stock are then traded, for any 20 trading days within any 30 consecutive trading day period within the Earnout Period or (ii) the per share consideration

 

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received in connection with an Acquiror Sale. In the event of an Acquiror Sale in which the per share consideration received is less than a price target set forth in the Merger Agreement that has not previously occurred, the applicable provisions of the Merger Agreement will terminate and no Fast Radius Earn Out Shares will be issuable thereunder with respect to such price target in connection with or following completion of such Acquiror Sale.

Representations, Warranties and Covenants

The parties to the Merger Agreement have made customary representations, warranties and covenants therein, including, among others, covenants (i) with respect to the conduct of the business of ENNV and Fast Radius and their respective subsidiaries prior to the Closing, (ii) providing for ENNV and Fast Radius to use reasonable best efforts to obtain all necessary regulatory approvals, (iii) providing for ENNV and Fast Radius to cooperate in the preparation of a registration statement on Form S-4 (the “Registration Statement”) to be filed by ENNV with the U.S. Securities and Exchange Commission (the “SEC”) in connection with the registration of the shares of ENNV Class A Common Stock to be issued pursuant to the Merger Agreement, which will include a proxy statement and a prospectus relating to the Transactions to be distributed to ENNV’s stockholders (the “Proxy Statement/Prospectus”), and a consent solicitation statement to be distributed by Fast Radius to its stockholders, and (iv) requiring that ENNV and Fast Radius will not solicit or negotiate with third parties regarding alternative transactions and will comply with certain related restrictions and will cease discussions regarding alternative transactions. Additionally, ENNV has agreed to include in the Proxy Statement/Prospectus a recommendation of ENNV’s board of directors to ENNV’s stockholders that they approve the Transaction Proposals (the “ENNV Board Recommendation”). The ENNV board of directors is permitted to change the ENNV Board Recommendation (such change, a “Modification in Recommendation”) if the board determines in good faith, after consultation with its outside legal counsel, that in response to an Intervening Event, the failure to make a Modification in Recommendation would be inconsistent with its fiduciary duties under applicable law.

Mutual Conditions to Closing

The obligations of ENNV, Merger Sub and Fast Radius to consummate the Merger are subject to the satisfaction or waiver of the following conditions: (i) the requisite approvals of ENNV and Fast Radius stockholders having been obtained; (ii) the Registration Statement having become effective under the Securities Act and no stop order having been issued with respect thereto; (iii) all waiting periods (and any extensions thereof) applicable to the Transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 having expired or been terminated; (iv) there not being in force any Governmental Order or Law enjoining or prohibiting, the consummation of the Merger; (v) ENNV having at least $5,000,001 of net tangible assets after deducting the amount required to satisfy any redemptions by ENNV stockholders in connection with the Closing and adding the aggregate gross proceeds received by ENNV from the PIPE Investment and the Forward Purchase Amount; and (vi) the shares of ENNV Class A Common Stock to be issued in connection with the Merger having been approved for listing on Nasdaq, subject only to notice of issuance thereof.

ENNV Conditions to Closing

The obligations of ENNV and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: (i) the accuracy of the representations and warranties of Fast Radius as determined in accordance with the Merger Agreement; (ii) the performance in all material respects of each of the covenants required by the Merger Agreement to be performed by ENNV as of or prior to the Closing; (iii) the delivery by Fast Radius to ENNV of a customary officer’s certificate, dated as of the date of the Closing and signed by an officer of the Company, certifying the satisfaction of certain

 

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conditions specified in the Merger Agreement; and (iv) there shall not have occurred a material adverse effect with respect to Fast Radius between the date of the Merger Agreement and the date of the Closing.

Fast Radius Conditions to Closing

The obligations of Fast Radius to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: (i) the accuracy of the representations and warranties of ENNV as determined in accordance with the Merger Agreement; (ii) the performance in all material respects of each of the covenants required by the Merger Agreement to be performed by ENNV as of or prior to the Closing; (iii) the amount of cash available in ENNV’s trust account immediately prior to the Effective Time and after (a) deducting (x) the amount required to satisfy any redemptions by ENNV stockholders in connection with the Closing, (y) the payment of any deferred underwriting commissions being held in the trust account and (z) the payment of certain transaction expenses and adding (b) the aggregate gross proceeds received by ENNV from the PIPE Investment (as defined herein) and the Forward Purchase Amount (as defined herein), in each case, as actually received by ENNV prior to or substantially concurrently with the Closing, equaling or exceeding $175.0 million; (iv) the resignation, effective as of the Closing, of any directors and officers of ENNV that are not identified as the initial post-Closing directors and officers of ENNV; (v) the delivery by ENNV to Fast Radius of a customary officer’s certificate, dated as of the date of the Closing and signed by an officer of the Company, certifying the satisfaction of certain conditions specified in the Merger Agreement; and (vi) there shall not have occurred a material adverse effect with respect to ENNV between the date of the Merger Agreement and the date of the Closing.

Termination

The Merger Agreement may be terminated and the Transactions abandoned by (i) mutual written consent of ENNV and Fast Radius, (ii) either ENNV or Fast Radius if consummation of the Transactions is permanently enjoined or prohibited by the terms of a final, non-appealable order, decree or ruling of a governmental entity or a statute, rule or regulation, (iii) either ENNV or Fast Radius if the requisite approval of ENNV stockholders is not obtained at the meeting of ENNV stockholders held for purposes thereof or any adjournment or postponement of such meeting, (iv) Fast Radius if there is a Modification in Recommendation, (v) either ENNV or Fast Radius if the Transactions are not consummated on or before February 18, 2022, provided that Fast Radius will not be entitled to exercise such termination right if ENNV is in material breach of the Merger Agreement at such time, (vi) ENNV if the requisite approval of Fast Radius stockholders of the Transactions by written consent is not been obtained within two business days following the date on which the Registration Statement is declared effective and (vii) either ENNV or Fast Radius if the other party has breached any of its representations, warranties or covenants, such that the conditions to closing of the Transactions would not be satisfied at the Closing, and has not cured such breach within 30 days of notice from the other party of its intent to terminate, provided that the terminating party is itself not in material breach of the Merger Agreement at such time.

The foregoing description of the Merger Agreement and the Transactions does not purport to be complete and is qualified in its entirety by the terms and conditions of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference. The Merger Agreement contains representations, warranties and covenants that the parties to the Merger Agreement made to each other as of the date of the Merger Agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating the Merger Agreement. The Merger Agreement has been attached to provide investors with information regarding its terms and is not intended to provide any other factual information about ENNV, Fast Radius or any other party to the Merger Agreement. In particular, the representations, warranties, covenants and agreements contained in the Merger Agreement, which were made only for purposes of the Merger Agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement, may

 

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be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts) and 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 Merger Agreement. In addition, the representations, warranties, covenants and agreements and other terms of the Merger 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 Merger Agreement, which subsequent information may or may not be fully reflected in ENNV’s public disclosures.

Subscription Agreements

Concurrently with the execution of the Merger Agreement, ENNV entered into subscription agreements (collectively, the “Subscription Agreements”) with the PIPE Investors, including, among others, UPS, Palantir and the Sponsor. Pursuant to the Subscription Agreements, the PIPE Investors agreed to subscribe for and purchase, and ENNV agreed to issue and sell, to the PIPE Investors an aggregate of 7,500,000 shares of ENNV Class A Common Stock for a purchase price of $10.00 per share, or an aggregate of approximately $75 million, in a private placement (the “PIPE Investment”).

The closing of the PIPE Investment will occur substantially concurrently with the consummation of the Transactions and is conditioned thereon and on other customary closing conditions. The shares of ENNV Class A Common Stock to be issued pursuant to the Subscription Agreements will not be registered under the Securities Act, and will be issued in reliance upon the exemption provided under Section 4(a)(2) of the Securities Act. The Subscription Agreements will terminate and be void and of no further force or effect and all rights and obligations of the parties thereto will terminate without further liability, upon the earlier to occur of: (a) such date and time as the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger, (b) the mutual written consent of each of the parties to each such Subscription Agreement, (c) the closing conditions under the Subscription Agreement not being satisfied or waived and the transactions contemplated by the Subscription Agreement not being consummated at the closing of the PIPE Investment, and (d) February 18, 2022 if the Merger has not occurred on or before such date.

The foregoing description of the Subscription Agreements does not purport to be complete and is qualified in its entirety by the terms and conditions of the form Subscription Agreement, which is filed as Exhibit 10.1 hereto and is incorporated by reference herein.

Forward Purchase Agreement Side Letter

Concurrently with the execution of the Merger Agreement, ENNV, the Sponsor and Goldman Sachs Asset Management, L.P., in its capacity as investment adviser on behalf of its clients (“GSAM”), entered into a side letter (the “Side Letter”) to that certain forward purchase agreement, dated as of January 24, 2021, by and among ENNV, the Sponsor and GSAM (the “Forward Purchase Agreement”), pursuant to which GSAM irrevocably consented to purchase from ENNV, and ENNV agreed to issue and sell to GSAM, twenty-five million dollars ($25,000,000) of units (“Forward Purchase Units”), each consisting of one share of ENNV Class A Common Stock and one-quarter of one redeemable warrant, each whole redeemable warrant of which is exercisable to purchase one share of ENNV Class A Common Stock at an exercise price of $11.50 per share, at a price of $10.00 per Forward Purchase Unit substantially concurrently with the Closing. The Company and the Sponsor also waived GSAM’s potential obligation to forfeit shares of ENNV Class B Common Stock under the circumstances contemplated by the Forward Purchase Agreement in connection with the Closing.

 

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The foregoing description of the Side Letter does not purport to be complete and is qualified in its entirety by the terms and conditions of the Side Letter filed as Exhibit 10.2 hereto and incorporated by reference herein.

Registration Rights Agreement

Concurrently with the execution of the Merger Agreement, ENNV, the Sponsor, and certain stockholders of ENNV and Fast Radius named therein entered into an Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”), which became effective upon the execution of the Merger Agreement. Pursuant to the Registration Rights Agreement, ENNV agreed to file a shelf registration statement with respect to the registrable securities thereunder within 30 days of the Closing. ENNV will thereafter be required to maintain a registration statement that is continuously effective and to cause the registration statement to regain effectiveness in the event that it ceases to be effective. At any time that the registration statement is effective, any holder signatory to the Registration Rights Agreement may request to sell all or a portion of its securities that are registrable in an underwritten offering pursuant to the registration statement. In addition, the holders have certain “piggyback” registration rights with respect to registrations initiated by ENNV. ENNV will bear the expenses incurred in connection with the filing of any registration statements pursuant to the Registration Rights Agreement.

Pursuant to the Registration Rights Agreement, the Sponsor, ENNV’s directors and officers and certain stockholders of Fast Radius have, subject to limited exceptions, agreed to a lock-up on their respective shares of ENNV Class A Common following consummation of the Transactions, pursuant to which such parties will not transfer shares of ENNV Class A Common Stock held by such parties for 180 days following the Closing. The Sponsor has also agreed to a lock-up on the warrants to purchase shares of ENNV Class A Common Stock at a price of $11.50 per share that it acquired in a private placement in connection with the initial public offering of ENNV, pursuant to which the Sponsor will not transfer such warrants for 30 days following the Closing.

The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Registration Rights Agreement filed as Exhibit 10.3 hereto and incorporated by reference herein.

Company Support Agreement

Concurrently with the execution of the Merger Agreement, certain stockholders of Fast Radius who, in the aggregate, hold a majority of the outstanding shares of capital stock of Fast Radius on a fully diluted basis entered into a company support agreement (the “Company Support Agreement”) with Fast Radius and ENNV pursuant to which such stockholders agreed to, on (or effective as of) the second business day following the date on which the Registration Statement is declared effective under the Securities Act, execute and deliver a written consent to adopt the Merger Agreement, the documents contemplated by the Merger Agreement and the transactions contemplated by the Merger Agreement and such other documents and to waive appraisal rights in connection with the Merger. In addition, such stockholders agreed, in the event of an annual or special meeting of Fast Radius stockholders for purposes of approving the Transactions, to (i) appear or cause their shares to be counted present for quorum purposes, (ii) vote in favor of or consent to the Merger and any other matter included on the agenda for such meeting of Fast Radius’ stockholders relating to the Transactions, (iii) vote (or execute an action by written consent with respect thereto) against any proposal that would reasonably be expected to impede the Transactions and (iv) vote in favor of or consent to the Transactions in any other circumstance so required for completion of the Transactions. Each such stockholder also granted an irrevocable proxy to the Chief Executive Officer of ENNV to act for and on such stockholder’s behalf, and in such stockholder’s name, place and stead, in the event that such stockholder fails to comply in any material respect with his, her or its obligations under the Company Support Agreement in a timely manner, to vote such stockholder’s shares and grant all written

 

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consents with respect thereto and to represent such shareholder in any stockholder meeting held for the purpose of voting on the Transactions.

The foregoing description of the Company Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Company Support Agreement filed as Exhibit 10.4 hereto and incorporated by reference herein.

Sponsor Support Agreement

Concurrently with the execution of the Merger Agreement, the Sponsor and ENNV’s directors and officers entered into a sponsor support agreement (the “Sponsor Support Agreement”) with ENNV and Fast Radius, pursuant to which the Sponsor and ENNV’s directors and officers agreed, at any special meeting of ENNV stockholders for purposes of approving the Transactions, to (i) appear or cause their shares to be counted present for quorum purposes, (ii) vote in favor of or consent to the Merger and any other matter included on the agenda for the special meeting of ENNV’s stockholders relating to the Transactions, (iii) vote (or execute an action by written consent with respect thereto) against any proposal that would reasonably be expected to impede the Transactions and (iv) vote in favor of or consent to the Transactions in any other circumstance so required for completion of the Transactions. The Sponsor and ENNV’s directors and officers also agreed not to redeem any shares of ENNV Class A Common Stock owned by such persons in connection with the approval of the Transactions by the stockholders of ENNV.

At the Closing, all of the shares of Class B common stock, par value $0.0001 per share, of ENNV (“ENNV Class B Common Stock”) will convert into shares of ENNV Class A Common Stock in accordance with the terms of ENNV’s amended and restated certificate of incorporation (the “Converted Shares”). Pursuant to the Sponsor Support Agreement, at the Closing, 90% of such Converted Shares will automatically vest. The remaining 10% of the Converted Shares (which will be equitably adjusted on account of any subdivision, stock split, reverse stock split, stock dividend, combination, reclassification or similar equity restructuring transaction or any changes in the ENNV Class A Common Stock as a result of a merger, consolidation, reorganization, recapitalization, business combination or similar transaction involving the Combined Company) (the “Sponsor Earn Out Shares”) will be subject to vesting, for the duration of the Earn Out Period, in two equal tranches, upon the satisfaction of certain price targets set forth in the Sponsor Support Agreement, which price targets will be based upon the (i) daily volume-weighted average sale price of shares of ENNV Class A Common Stock quoted on Nasdaq, or the exchange on which the shares of ENNV Class A Common Stock are then traded, for any 20 trading days within any 30 consecutive trading day period within the Earnout Period or (ii) the per share consideration received in connection with an Acquiror Sale. In the event of an Acquiror Sale in which the per share consideration received is less than a price target set forth in the Merger Agreement that has not previously occurred, the applicable provisions of the Sponsor Support Agreement will terminate and no Sponsor Earn Out Shares will be issuable thereunder with respect to such price target in connection with or following completion of such Acquiror Sale. Upon the expiration of the Earn Out Period, any unvested Sponsor Earn Out Shares will be forfeited to ENNV without consideration.

The foregoing description of the Sponsor Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Sponsor Support Agreement filed as Exhibit 10.5 hereto and incorporated by reference herein.

Item 3.02 Unregistered Sales of Equity Securities

The information contained in Item 1.01 of this Current Report on Form 8-K (this “Report”) with respect to the Subscription Agreements and the Side Letter is incorporated by reference herein and made a part hereof. The shares of common stock issuable in connection with the PIPE Investment and the Forward Purchase Units issuable pursuant to the Forward Purchase Agreement, as modified by the Side Letter, will

 

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not be registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act promulgated thereunder.

Item 7.01 Regulation FD Disclosure

The information set forth below under this Item 7.01, including the exhibits attached hereto, is intended to be furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such filing.

Press Release

Attached as Exhibit 99.1 to this Report is the press release issued by the parties related to the proposed Transactions.

Conference Call Script

Attached as Exhibit 99.2 to this Report is the form of conference call script for use by ENNV in connection with a conference call announcing the Transactions.

Investor Meetings

Attached as Exhibit 99.3 to this Report is the form of investor presentation for use by ENNV in presentations to certain of its stockholders and other persons with respect to the transactions contemplated by the Merger Agreement.

Cautionary Statement Regarding Forward Looking Statements

This Report contains certain forward-looking statements within the meaning of the federal securities laws with respect to the proposed Transactions between ENNV and Fast Radius. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “scales,” “representative of,” “valuation,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. 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. Many factors could cause actual future events to differ materially from the forward-looking statements in this Report, including but not limited to: (i) the risk that the Transactions may not be completed in a timely manner or at all, which may adversely affect the price of ENNV’s securities, (ii) the risk that the Transactions may not be completed by ENNV’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by ENNV, (iii) the failure to satisfy the conditions to the consummation of the Transactions, including the requisite approvals of ENNV’s and Fast Radius’ stockholders, the satisfaction of the minimum trust account amount following any redemptions by ENNV’s public stockholders and the receipt of certain governmental and regulatory approvals, (iv) the lack of a third party valuation in determining whether or not to pursue the Transactions, (v) the risk that ENNV’s proposed private offering of public equity is not completed, (vi) the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger Agreement relating to the Transactions, (vii) the effect of the announcement or pendency of the Transactions on Fast Radius’ business or employee relationships, operating results and business generally, (viii) the risk that the Transactions disrupts current plans and operations of Fast Radius, (ix) the risk of difficulties in retaining employees of Fast Radius as a result of the Transactions, (x) the outcome of any legal proceedings that may be instituted against Fast Radius or against ENNV related to the Merger Agreement or the Transactions, (xi) the ability to maintain the listing of ENNV’s securities on a national securities exchange, (xii) changes in the

 

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competitive industries in which Fast Radius operates, variations in operating performance across competitors, changes in laws and regulations affecting Fast Radius’ business and changes in the combined capital structure, (xiii) the ability to implement business plans, forecasts, and other expectations after the completion of the Transactions, and the ability to identify and realize additional opportunities, (xiv) risks related to the uncertainty of Fast Radius’ projected financial information, (xv) risks related to Fast Radius’ potential inability to become profitable and generate cash, (xvi) current and future conditions in the global economy, including as a result of the impact of the COVID-19 pandemic, (xvii) the risk that demand for Fast Radius’ cloud manufacturing technology does not grow as expected, (xviii) the ability of Fast Radius to retain existing customers and attract new customers, (xix) the potential inability of Fast Radius to manage growth effectively, (xx) the potential inability of Fast Radius to increase its cloud manufacturing capacity or to achieve efficiencies regarding its cloud manufacturing process or other costs, (xxi) the enforceability of Fast Radius’ intellectual property rights, including its copyrights, patents, trademarks and trade secrets, and the potential infringement on the intellectual property rights of others, (xxii) Fast Radius’ dependence on senior management and other key employees, (xxiii) the risk of downturns and a changing regulatory landscape in the highly competitive industry in which Fast Radius operates, (xxiv) the risk that Fast Radius may require additional funding for its growth plans and may not be able to obtain any additional financing on terms that are acceptable to Fast Radius or at all and (xxv) costs related to the Transactions and the failure to realize anticipated benefits of the Transactions or to realize estimated pro forma results and underlying assumptions, including with respect to estimated stockholder redemptions. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties which will be more fully described in the “Risk Factors” section of ENNV’s Quarterly Reports on Form 10-Q, the Registration Statement, the Proxy Statement/Prospectus and other documents filed by ENNV 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 Fast Radius and ENNV assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither Fast Radius nor ENNV gives any assurance that either Fast Radius or ENNV, or the combined company, will achieve its expectations.

Additional Information and Where to Find It

This Report relates to the proposed Transactions between ENNV and Fast Radius. ENNV intends to file the Registration Statement, which will include the Proxy Statement/Prospectus that will be sent to all ENNV stockholders. ENNV will also file other documents regarding the Transactions with the SEC. Before making any voting decision, investors and security holders of ENNV and Fast Radius are urged to read the Registration Statement, the Proxy Statement/Prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the Transactions as they become available because they will contain important information about the Transactions. Investors and security holders will be able to obtain free copies of the Registration Statement, the Proxy Statement/Prospectus, and all other relevant documents filed or that will be filed with the SEC by ENNV through the website maintained by the SEC at www.sec.gov. The documents filed by ENNV with the SEC also may be obtained free of charge upon written request to ENNV at 40 Beechwood Road, Summit, New Jersey 07901.

Participants in the Solicitation

ENNV, Fast Radius and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from ENNV’s stockholders in connection with the Transactions. A list of the names of such directors and executive officers and information regarding their interests in the Transactions will be included in the Proxy Statement/Prospectus when available. You can find more information about ENNV’s directors and executive officers in the final prospectus relating to ENNV’s

 

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initial public offering, which ENNV filed with the SEC on February 10, 2021. You may obtain free copies of these documents as described in the preceding paragraph.

No Offer or Solicitation

This Report shall not constitute an offer to sell or exchange or the solicitation of an offer to buy or exchange any securities, nor shall there be any sale or exchange of securities in any jurisdiction in which such offer, solicitation, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of the U.S. Securities Act of 1933, as amended.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits:

 

 

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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.

 

 

Exhibit 2.1

 

AGREEMENT AND PLAN OF MERGER

by and among

ECP ENVIRONMENTAL GROWTH OPPORTUNITIES CORP.,

ENNV MERGER SUB, INC.

and

FAST RADIUS, INC.

dated as of July 18, 2021

 

 

 

 

 

 

 

 

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TABLE OF CONTENTS

 

 

 

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Exhibits

 

Exhibit AForm of Second Amended and Restated Certificate of Incorporation of Acquiror

Exhibit BForm of Amended and Restated Bylaws of Acquiror

Exhibit CForm of Amended and Restated Registration Rights Agreement

Exhibit DForm of Sponsor Support Agreement

Exhibit EForm of Company Support Agreement

Exhibit FForm of Incentive Equity Plan

Exhibit GForm of Purchase Plan

 

 

 

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AGREEMENT AND PLAN OF MERGER

This Agreement and Plan of Merger, dated as of July 18, 2021 (this “Agreement”), is made and entered into by and among ECP Environmental Growth Opportunities Corp., a Delaware corporation (“Acquiror”), ENNV Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of Acquiror (“Merger Sub”), and Fast Radius, Inc., a Delaware corporation (the “Company”).

RECITALS

WHEREAS, Acquiror is a blank check company incorporated as a Delaware corporation and formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses;

WHEREAS, upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), Acquiror and the Company will enter into a business combination transaction pursuant to which (a) Merger Sub will merge with and into the Company, the separate corporate existence of Merger Sub will cease and the Company will be the surviving corporation and a wholly owned subsidiary of Acquiror (the “Merger”) and (b) Acquiror will change its name to “Fast Radius, Inc.”;

WHEREAS, the Board of Directors of the Company has (a) determined that the Merger is fair to and in the best interests of the Company and its stockholders, (b) approved the execution and delivery of this Agreement and the documents contemplated hereby and the transactions contemplated hereby and thereby, including the Merger, and declared it advisable for the Company to enter into this Agreement and the other documents contemplated hereby and (c) recommended the approval and adoption of this Agreement and the documents contemplated hereby, and the transactions contemplated hereby and thereby, including the Merger, by the stockholders of the Company;

WHEREAS, each of the Boards of Directors of Acquiror and Merger Sub has (a) determined that the Merger is fair to and in the best interests of Acquiror and Merger Sub and their respective stockholders, as applicable, (b) approved the execution and delivery of this Agreement and the documents contemplated hereby and the transactions contemplated hereby and thereby, including the Merger, and declared it advisable for Acquiror and Merger Sub, as applicable, to enter into this Agreement and the documents contemplated hereby and (c) recommended the approval and adoption of this Agreement and the documents contemplated hereby, and the transactions contemplated hereby and thereby, including the Merger, by the Acquiror Stockholders (as defined below) and the sole stockholder of Merger Sub, as applicable;

WHEREAS, Acquiror, as sole stockholder of Merger Sub, has approved and adopted this Agreement and the documents contemplated hereby and the transactions contemplated hereby and thereby, including the Merger;

WHEREAS, prior to the Effective Time, (i) the outstanding principal together with all accrued and unpaid interest on the Company Convertible Notes (as defined below) will automatically be converted into a number of shares of Company Common Stock (as defined below) in accordance with the terms of the Company Convertible Note Purchase Agreement (as

 

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defined below) and (ii) all of the outstanding Company Warrants (as defined below) will be exercised in full on a cashless basis in accordance with their respective terms (the “Warrant Settlement”);

WHEREAS, upon the Effective Time, all of the Company Capital Stock (as defined below) and Vested RSU Awards (as defined below) will be converted into the right to receive a portion of the Aggregate Merger Consideration (as defined below), including a number of Company Earn Out Shares (as defined below), as set forth in this Agreement;

WHEREAS, upon the Effective Time, all Company Awards (as defined below) other than Vested RSU Awards will be converted into awards for Acquiror Class A Common Stock representing a portion of the Aggregate Merger Consideration;

WHEREAS, in furtherance of the Merger and in accordance with the terms hereof, Acquiror shall provide an opportunity to the holders of Acquiror Class A Common Stock (as defined below) to have their outstanding shares of Acquiror Class A Common Stock redeemed on the terms and subject to the conditions set forth in this Agreement and Acquiror’s Governing Documents (as defined below) in connection with obtaining the Acquiror Stockholder Approval (as defined below);

WHEREAS, as a condition and inducement to the Company’s entering into this Agreement, simultaneously with the execution and delivery of this Agreement, the Sponsor (as defined below) has executed and delivered to the Company a Sponsor Support Agreement, dated as of the date hereof, by and among the Sponsor, Acquiror and the Company, and attached hereto as Exhibit D (as may be amended from time to time in accordance with its terms, the “Sponsor Support Agreement”), pursuant to which the Sponsor has agreed, among other things, to vote to adopt and approve this Agreement and the other documents contemplated hereby and the transactions contemplated hereby and thereby, including the Merger, and to defer the vesting of ten percent (10%) of the shares of Acquiror Class A Common Stock (including shares of Acquiror Class A Common Stock issued upon conversion of the outstanding shares of Acquiror Class B Common Stock held by the Sponsor at the Effective Time) held by Sponsor until (i) the occurrence of Triggering Event I (as defined below), upon which five percent (5%) of the Acquiror Class A Common Stock (including shares of Acquiror Class A Common Stock issued upon conversion of the outstanding shares of Acquiror Class B Common Stock held by the Sponsor at the Effective Time) held by Sponsor will be vested, and (ii) the occurrence of Triggering Event II (as defined below), upon which five percent (5%) of the Acquiror Class A Common Stock (including shares of Acquiror Class A Common Stock issued upon conversion of the outstanding shares of Acquiror Class B Common Stock held by the Sponsor at the Effective Time) held by Sponsor will be vested in accordance with the terms hereof;

WHEREAS, as a condition and inducement to Acquiror’s entering into this Agreement, simultaneously with the execution and delivery of this Agreement, the Major Company Stockholders have executed and delivered to Acquiror a Company Holders Support Agreement, in the form attached hereto as Exhibit E (as may be amended from time to time in accordance with its terms, the “Company Support Agreement”), pursuant to which the Major Company Stockholders have agreed, among other things, to vote to adopt and approve this Agreement and

 

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the other documents contemplated hereby and the transactions contemplated hereby and thereby, including the Merger;

WHEREAS, on or prior to the date hereof, Acquiror entered into the Subscription Agreements (as defined below) with PIPE Investors (as defined below) pursuant to which, and on the terms and subject to the conditions of which, such PIPE Investors agreed to purchase from Acquiror shares of Acquiror Class A Common Stock for an aggregate purchase price at least equal to the Minimum PIPE Investment Amount (as defined below), such purchases to be consummated prior to or substantially concurrently with the Closing;

WHEREAS, Goldman Sachs Asset Management, L.P., in its capacity as investment adviser on behalf of its clients (“GSAM”), has agreed to subscribe for and purchase, and Acquiror has agreed to issue and sell to GSAM, 2,500,000 units, each consisting of one (1) share of Acquiror Class A Common Stock and one-quarter of one (1/4) redeemable warrant (collectively, the “Forward Purchase Securities”), at a price of ten Dollars ($10.00) per unit for an aggregate purchase price of twenty five million Dollars ($25,000,000) (the “Forward Purchase Amount”) in a private placement that will close substantially concurrently with the Closing, pursuant to the Forward Purchase Agreement (as defined below), and on the terms and subject to the conditions set forth therein;

WHEREAS, the Merger is intended to qualify as a “reorganization” within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations promulgated thereunder and this Agreement is, and is hereby adopted as, a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3; and

WHEREAS, simultaneously with the execution and delivery of this Agreement, Acquiror, the Sponsor, the Major Company Stockholders and certain of their respective Affiliates, as applicable, have entered into an Amended & Restated Registration Rights Agreement (the “Registration Rights Agreement”) substantially in the form attached hereto as Exhibit C.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, Acquiror, Merger Sub and the Company agree as follows:

Article I
CERTAIN DEFINITIONS

Section 1.1.Definitions. As used herein, the following terms shall have the following meanings:

“Acceleration Event” has the meaning specified in Section 4.2.

“Acquiror” has the meaning specified in the Preamble hereto.

“Acquiror Class A Common Stock” means the Class A common stock, par value $0.0001 per share, of Acquiror.

 

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“Acquiror Class B Common Stock” means the Class B common stock, par value $0.0001 per share, of Acquiror.

“Acquiror Common Stock” means the Acquiror Class A Common Stock and the Acquiror Class B Common Stock.

“Acquiror Cure Period” has the meaning specified in Section 11.1(g).

“Acquiror Disclosure Letter” has the meaning specified in the introduction to Article VI.

“Acquiror Financial Statements” has the meaning specified in Section 6.6(d).

“Acquiror Fundamental Representations” means the representations and warranties made pursuant to the first and second sentences of Section 6.1 (Acquiror and Merger Sub Organization), Section 6.2 (Due Authorization) and Section 6.13 (Brokers’ Fees).

“Acquiror Group” has the meaning specified in Section 12.18(a).

“Acquiror Material Adverse Effect” has the meaning specified in Section 6.10.

“Acquiror Option” has the meaning specified in Section 3.3(a).

“Acquiror Private Warrants” means the redeemable warrants of Acquiror, each exercisable in accordance with its terms to purchase one (1) share of Acquiror Class A Common Stock at an exercise price of eleven Dollars and fifty cents ($11.50) per share, subject to adjustment, that were sold in a private placement concurrently with the closing of Acquiror’s initial public offering.

“Acquiror Public Warrants” means the redeemable warrants of Acquiror, each exercisable in accordance with its terms to purchase one (1) share of Acquiror Class A Common Stock at an exercise price of eleven Dollars and fifty cents ($11.50) per share, subject to adjustment, that were sold as part of the Acquiror Units in Acquiror’s initial public offering.

“Acquiror Restricted Stock Award” has the meaning specified in Section 3.3(b).

“Acquiror Restricted Stock Unit Award” has the meaning specified in Section 3.3(d).

“Acquiror Sale” means the occurrence of any of the following events (which, for the avoidance of doubt, shall not include the transactions contemplated hereby): (a) any Person or any group of Persons acting together which would constitute a “group” for purposes of Section 13(d) of the Exchange Act or any successor provisions thereto is or becomes the beneficial owner, directly or indirectly, of securities of Acquiror representing more than fifty percent (50%) of the combined voting power of Acquiror’s then outstanding voting securities, (b) the consummation of a merger or consolidation of Acquiror with any other corporation or other entity, and, immediately after the consummation of such merger or consolidation, either (x) the members of the Board of Directors of Acquiror immediately prior to the merger or consolidation do not constitute at least a majority of the Board of Directors of the company surviving the merger or, if the surviving company is a Subsidiary, the ultimate parent thereof, or (y) the voting securities of Acquiror immediately prior to such merger or consolidation do not continue to represent or are not converted

 

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into more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary, the ultimate parent thereof, or (c) the shareholders of Acquiror approve a plan of complete liquidation or dissolution of Acquiror or there is consummated an agreement or series of related agreements for the sale, lease or other disposition, directly or indirectly, by Acquiror of all or substantially all of the assets of Acquiror and its Subsidiaries, taken as a whole, other than such sale or other disposition by Acquiror of all or substantially all of the assets of Acquiror and its Subsidiaries, taken as a whole, to an entity at least fifty percent (50%) of the combined voting power of the voting securities of which are owned by shareholders of Acquiror in substantially the same proportions as their ownership of Acquiror immediately prior to such sale.

“Acquiror SEC Filings” has the meaning specified in Section 6.5.

“Acquiror Second A&R Charter” has the meaning specified in Section 9.2(c).

“Acquiror Securities” means the Acquiror Common Stock, the Acquiror Units, the Acquiror Public Warrants, the Acquiror Private Warrants and the Working Capital Warrants, if any.

“Acquiror Share Redemption” means the right of the holders of Acquiror Class A Common Stock to redeem all or a portion of their Acquiror Class A Common Stock (in connection with the transactions contemplated by this Agreement or otherwise) as set forth in Acquiror’s Governing Documents.

“Acquiror Share Redemption Amount” means the aggregate amount payable with respect to all Acquiror Share Redemptions.

“Acquiror Stockholder Approval” has the meaning specified in Section 6.2(b).

“Acquiror Stockholders” means the holders of Acquiror Common Stock as of immediately prior to the Effective Time.

“Acquiror Stockholders’ Meeting” has the meaning specified in Section 9.2(b).

“Acquiror Transaction Expenses” has the meaning specified in Section 2.4(c).

“Acquiror Units” means the units of Acquiror sold in connection with Acquiror’s initial public offering, each such unit consisting of one (1) share of Acquiror Class A Common Stock and one-quarter of one (1/4) Acquiror Public Warrant.

“Acquiror Warrant Agreement” means the Warrant Agreement, dated as of February 8, 2021, between Acquiror and American Stock Transfer & Trust Company, LLC, as warrant agent.

“Acquisition Proposal” means, with respect to the Company and its Subsidiaries, other than the transactions contemplated hereby and other than the acquisition or disposition of equipment or other tangible personal property in the ordinary course of business, any offer or proposal relating to (a) any acquisition or purchase, direct or indirect, of (i) fifteen percent (15%) or more of the consolidated assets of the Company and its Subsidiaries or (ii) fifteen percent (15%) or more of

 

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any class of equity or voting securities of (x) the Company or (y) one or more Subsidiaries of the Company holding assets constituting, individually or in the aggregate, fifteen percent (15%) or more of the consolidated assets of the Company and its Subsidiaries, (b) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in any Person beneficially owning fifteen percent (15%) or more of any class of equity or voting securities of (i) the Company or (ii) one or more Subsidiaries of the Company holding assets constituting, individually or in the aggregate, fifteen percent (15%) or more of the consolidated assets of the Company and its Subsidiaries, or (c) a merger, consolidation, share exchange, business combination, sale of substantially all the assets, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving (i) the Company or (ii) one or more Subsidiaries of the Company holding assets constituting, individually or in the aggregate, fifteen percent (15%) or more of the consolidated assets of the Company and its Subsidiaries.

“Action” means any claim, action, charge, suit, audit, examination, assessment, arbitration, mediation or inquiry, or any proceeding or investigation, by or before any Governmental Authority.

“Additional Award Shares” means the whole number of shares of Acquiror Class A Common Stock (rounded down to the nearest whole share) equal to the product of (i) the number of shares of Company Common Stock subject to each of the outstanding Company Options, Company Restricted Stock Awards and Company Restricted Stock Unit awards (other than Vested RSU Awards) in the aggregate as of immediately prior to the Effective Time multiplied by (ii) the Earn Out Exchange Ratio multiplied by (iii) the Earn Out Shares Discount Factor.

“Additional Required Financial Statements” has the meaning specified in Section 7.3(a).

“Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, whether through one or more intermediaries or otherwise; provided that in no event shall Acquiror or Merger Sub be considered an Affiliate of any portfolio company, investment fund or other vehicle affiliated with or managed by, or investing on a parallel or co-investment basis with investment funds affiliated with or managed by, Energy Capital Partners Management, LP, ECP ControlCo, LLC or their respective Affiliates, nor shall any portfolio company, investment fund or other vehicle affiliated with or managed by Energy Capital Partners Management, LP, ECP ControlCo, LLC or their respective Affiliates be considered to be an Affiliate of Acquiror or Merger Sub.

“Affiliate Agreements” has the meaning specified in Section 5.12(a)(viii).

“Aggregate Fully Diluted Company Stock” means, without duplication, (a) the aggregate number of shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time (for the avoidance of doubt, following the Company Convertible Notes Conversion and the Warrant Settlement) plus (b) the aggregate number of shares of Company Preferred Stock that are issued and outstanding immediately prior to the Effective Time plus (c) the aggregate maximum number of shares of Company Capital Stock that are subject to Company Restricted Stock Units, Company Restricted Stock Awards and Company Options (in each case,

 

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whether or not then vested or exercisable) that are outstanding immediately prior to the Effective Time.

“Aggregate Merger Consideration” means a number of shares of Acquiror Class A Common Stock equal to the quotient obtained by dividing (a) the Base Purchase Price by (b) ten dollars ($10.00).

“Agreement” has the meaning specified in the Preamble hereto.

“Agreement End Date” has the meaning specified in Section 11.1(e).

“Alternative Transaction” means any transaction (other than any transaction expressly contemplated hereby) concerning the sale or transfer of any of the shares of Company Capital Stock or other Equity Interests of the Company or any of its Subsidiaries, whether newly issued or already outstanding, in any case, whether such transaction takes the form of a sale of Equity Interests, assets, merger, consolidation, issuance of debt securities or convertible securities, warrants, management Contract, joint venture, partnership or otherwise.

“Amendment Proposal” has the meaning specified in Section 9.2(c).

“Ancillary Agreements” has the meaning specified in Section 12.10.

“Anti-Bribery Laws” means the anti-bribery provisions of the Foreign Corrupt Practices Act of 1977, as amended, and all other applicable anti-corruption and bribery Laws (including the U.K. Bribery Act 2010, and any rules or regulations promulgated thereunder and other Laws of other countries implementing the OECD Convention on Combating Bribery of Foreign Officials).

“Anti-Money Laundering Laws” means all applicable Laws related to the prevention of money laundering, including the U.S. Money Laundering Control Act of 1986, the U.S. Currency and Foreign Transactions Reporting Act of 1970 (commonly referred to as the “U.S. Bank Secrecy Act”) and similar Laws in other applicable jurisdictions.

“Antitrust Authorities” means the Antitrust Division of the United States Department of Justice, the United States Federal Trade Commission and the antitrust or competition Law authorities of any other jurisdiction (whether United States, foreign or multinational).

“Antitrust Information or Document Request” means any request or demand for the production, delivery or disclosure of documents or other evidence, or any request or demand for the production of witnesses for interviews or depositions or other oral or written testimony, by any Antitrust Authorities relating to the transactions contemplated hereby or by any third party challenging the transactions contemplated hereby, including any so called “second request” for additional information or documentary material or any civil investigative demand made or issued by any Antitrust Authority or any subpoena, interrogatory or deposition relating thereto.

“Audited Financial Statements” has the meaning specified in Section 5.8(a).

“Available Acquiror Cash” has the meaning specified in Section 8.2(a).

 

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“Base Award Shares” means the whole number of shares of Acquiror Class A Common Stock (rounded down to the nearest whole share) equal to the product of (i) the number of shares of Company Common Stock subject to each of the outstanding Company Options, Company Restricted Stock Awards and Company Restricted Stock Unit awards (other than Vested RSU Awards) in the aggregate as of immediately prior to the Effective Time multiplied by (ii) the remainder of (a) one minus (b) (x) the Earn Out Exchange Ratio, multiplied by (y) the Earn Out Shares Discount Factor.

“Base Purchase Price” means one billion Dollars ($1,000,000,000.00).

“Business Combination” means a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination involving Acquiror and one or more businesses, including the Merger.

“Business Combination Proposal” means any offer, inquiry, proposal or indication of interest (whether written or oral, binding or non-binding), relating to a Business Combination.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or Chicago, Illinois, or Governmental Authorities in the State of Delaware, are authorized or required by Law to close.

“CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act.

“Certificate” means a stock certificate representing a holder’s ownership of Company Capital Stock.

“CEO Incentive Plan Proposal” has the meaning specified in Section 9.2(c).

“Chief Executive Officer Equity Incentive Plan” has the meaning specified in Section 8.1(a).

“Closing” has the meaning specified in Section 2.3(a).

“Closing Date” has the meaning specified in Section 2.3(a).

“COBRA” means the requirements of Part 6 of Subtitle B of Title I of ERISA and Code §4980B and of any similar state Law.

“Code” has the meaning specified in the Recitals hereto.

“Company” has the meaning specified in the Preamble hereto.

“Company Award” means a Company Option, Company Restricted Stock Award or Company Restricted Stock Unit award.

“Company Award Exchange Ratio” means the sum of (i) the Merger Consideration Exchange Ratio plus (ii) the product of (a) the Earn Out Exchange Ratio multiplied by (b) the Earn Out Shares Discount Factor.

 

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“Company Benefit Plan” has the meaning specified in Section 5.13(a).

“Company Capital Stock” means Company Common Stock and Company Preferred Stock.

“Company Common Stock” means the Common Stock, par value $0.0001 per share, of the Company.

“Company Convertible Note Investors” means Energize Ventures Fund LP, Energize Growth Fund I LP, EV FR SPV LLC and Ironspring Venture Find I-FR, LP.

“Company Convertible Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of March 12, 2021, by and among the Company and the Company Convertible Note Investors.

“Company Convertible Notes” means the Convertible Promissory Notes issued by the Company to the Company Convertible Note Investors pursuant to the Company Convertible Note Purchase Agreement.

“Company Convertible Notes Conversion” has the meaning specified in Section 3.1(a).

“Company Cure Period” has the meaning specified in Section 11.1(e).

“Company Disclosure Letter” has the meaning specified in the introduction to Article V.

“Company Earn Out Shares” has the meaning specified in Section 4.1(a).

“Company Financial Statements” has the meaning specified in Section 5.8(a).

“Company Fundamental Representations” means the representations and warranties made pursuant to the first and second sentences of Section 5.1 (Company Organization), Section 5.3 (Due Authorization), clause (a) of Section 5.4 (No Conflict), Section 5.6 (Capitalization of the Company), Section 5.16 (Brokers’ Fees) and clause (b) of Section 5.24 (Absence of Changes).

“Company Group” has the meaning specified in Section 12.18(b).

“Company Incentive Plan” means the Fast Radius, Inc. Amended and Restated 2017 Stock Plan, as amended and restated as of July 29, 2020.

“Company Indemnified Parties” has the meaning specified in Section 8.7(a).

“Company IT Systems” means any computer hardware, computer systems, workstations, servers, networks, platforms, peripherals, data communication lines, circuits, hubs, software databases, internet websites and other information technology equipment and related systems and services (including so-called SaaS/PaaS/IaaS services) that are owned or controlled by, or relied upon in the conduct of the business of, the Company or its Subsidiaries.

“Company Material Adverse Effect” means any event, state of facts, development, circumstance, occurrence or effect (collectively, “Events”) that (a) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business,

 

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assets, liabilities, results of operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (b) does or would reasonably be expected to, individually or in the aggregate, prevent the ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement and the other documents contemplated hereby; provided, that in no event would any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Company Material Adverse Effect” pursuant to clause (a) of this definition: (i) any change in applicable Laws or GAAP or any interpretation thereof following the date of this Agreement, (ii) any change in interest rates or economic, political, credit, business or financial market conditions generally, (iii) the taking of any action expressly required by this Agreement, (iv) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), or Contagion Event, (v) any acts of terrorism or war, the outbreak or escalation of hostilities, geopolitical conditions, or local, national or international political conditions, (vi) any failure of the Company to meet any projections or forecasts (provided that this clause (vi) shall not prevent a determination that any Event not otherwise excluded from this definition of Company Material Adverse Effect underlying such failure to meet projections or forecasts has resulted in a Company Material Adverse Effect), (vii) any Events generally applicable to the industries or markets in which the Company and its Subsidiaries operate (including increases in the cost of products, services, supplies, materials or other goods purchased from third-party suppliers), (viii) the announcement of this Agreement and consummation of the transactions contemplated hereby, including any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement or consummation) on relationships, contractual or otherwise, with any landlords, customers, suppliers, distributors, partners or employees of the Company and its Subsidiaries (it being understood that this clause (viii) shall be disregarded for purposes of the representation and warranty set forth in Section 5.4, Section 5.13(h), Section 5.21(k), Section 5.22(d) and the last sentence of Section 5.6(b), and any condition to Closing with respect thereto), or (ix) any action taken by, or at the written request of, Acquiror or Merger Sub; provided, further, that any Event referred to in clauses (i), (ii), (iv), (v) or (vii) above may be taken into account in determining if a Company Material Adverse Effect has occurred to the extent it has a disproportionate and adverse effect on the business, assets, liabilities, results of operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, relative to similarly situated companies in the industry in which the Company and its Subsidiaries conduct their respective operations, but only to the extent of the incremental disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to similarly situated companies in the industry in which the Company and its Subsidiaries conduct their respective operations.

“Company Option” means an option to purchase Company Common Stock granted under the Company Incentive Plan.

“Company Owned IP” has the meaning specified in Section 5.21(a).

“Company Preferred Stock” means the Company Series Seed Preferred Stock, the Company Series Seed-1 Preferred Stock, the Company Series A-1 Preferred Stock, the Company Series A-2 Preferred Stock, the Company Series A-3 Preferred Stock and the Company Series B Preferred Stock.

 

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“Company Registered Intellectual Property” has the meaning specified in Section 5.21(a).

“Company Restricted Stock Award” means each award with respect to a share of Company Common Stock outstanding under the Company Incentive Plan that is, at the time of determination, subject to a risk of forfeiture or repurchase by the Company, whether subject to time- or performance-based vesting.

“Company Restricted Stock Unit” means a right, granted under the Company Incentive Plan, to receive a share of Company Common Stock or cash in lieu thereof on a future date or event.

“Company Series A‑1 Preferred Stock” means the Series A‑1 Preferred Stock, par value $0.0001 per share, of the Company.

“Company Series A‑2 Preferred Stock” means the Series A‑2 Preferred Stock, par value $0.0001 per share, of the Company.

“Company Series A‑3 Preferred Stock” means the Series A‑3 Preferred Stock, par value $0.0001 per share, of the Company.

“Company Series B Preferred Stock” means the Series B Preferred stock, par value $0.0001 per share, of the Company.

“Company Series Seed Preferred Stock” means the Series Seed Preferred Stock, par value $0.0001 per share, of the Company.

“Company Series Seed-1 Preferred Stock” means the Series Seed-1 Preferred Stock, par value $0.0001 per share, of the Company.

“Company Service Provider” has the meaning specified in Section 5.21(j).

“Company Stockholder Approval Deadline” has the meaning specified in Section 9.2(d).

“Company Stockholder Approvals” means the approval of this Agreement and the documents contemplated hereby and the transactions contemplated hereby and thereby, including the Merger, by the written consent of (i) the holders of a majority of the outstanding shares of Company Common Stock and Company Preferred Stock, voting together as a single class on an as-converted to Company Common Stock basis, (ii) the holders of a majority of the outstanding shares of each series of Company Preferred Stock, voting as a separate class, and (iii) the holders of a majority of the outstanding shares of Company Preferred Stock, voting together as a single class on an as-converted to Company Common Stock basis, in each case, pursuant to the terms and subject to the conditions of the Company’s Governing Documents and applicable Law.

“Company Support Agreement” has the meaning specified in the Recitals hereto.

“Company Transaction Expenses” means all out-of-pocket fees and expenses paid or payable by the Company or any of its Subsidiaries (whether or not billed or accrued for) as a result of or in connection with the negotiation, documentation and consummation of the transactions

 

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contemplated hereby, including: (a) all fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, data room administrators, attorneys, accountants and other advisors and service providers and (b) change-in-control payments, transaction bonuses, retention payments, severance or similar compensatory payments payable by the Company or any of its Subsidiaries to any current or former employee (including any amounts due under any consulting agreement with any such former employee), independent contractor, officer, or director of the Company or any of its Subsidiaries as a result of the transactions contemplated hereby (and not tied to any subsequent event or condition, such as a termination of employment), including the employer portion of payroll or other similar Taxes arising therefrom.

“Company Warrants” means each of (a) the Warrant to Purchase Common Stock, issued by the Company to United Parcel Service General Services Co. on February 3, 2020, for the purchase of up to 101,927 shares of Company Common Stock; (b) the Warrant to Purchase Common Stock, issued by the Company to XMS Capital Partners, LLC on June 19, 2019, for the purchase of up to 48,874 shares of Company Common Stock, as amended as of July 6, 2021; (c) the Amended & Restated Warrant to Purchase Common Stock, issued by the Company to Silicon Valley Bank on May 25, 2021, for the purchase of up to 52,230 shares of Company Common Stock, as amended as of July 12, 2021; (d) the Amended and Restated Warrant to Purchase Common Stock, issued by the Company to Silicon Valley Bank on March 12, 2021, for the purchase of 26,115 shares of Company Common Stock; (e) the Warrant to Purchase Common Stock, issued by the Company to United Parcel Service General Services Co. on March 21, 2019, for the purchase of up to 713,491 shares of Company Common Stock; (f) the Warrant to Purchase Preferred Stock, issued by the Company to ATEL Ventures on October 4, 2018, for the purchase of up to 32,405 shares of Company Series A-3 Preferred Stock, as amended as of July 12, 2021; (g) the Warrant to Purchase Common Stock, issued by the Company to Silicon Valley Bank on October 12, 2018, for the purchase of 46,636 shares of Company Common Stock; (h) the Warrant to Purchase Common Stock, issued by the Company to Energize Growth Fund I LP on April 13, 2021, for the purchase of up to 88,667 shares of Company Common Stock; (i) the Warrant to Purchase Common Stock, issued by the Company to Energize Ventures Fund LP on April 13, 2021, for the purchase of up to 18,666 shares of Company Common Stock; and (j) the Warrant to Purchase Common Stock, issued by the Company to EV FR SPV LLC on April 13, 2021, for the purchase of up to 32,667 shares of Company Common Stock.

“Compensation Study” has the meaning specified in Section 8.1(c).

“Confidentiality Agreement” has the meaning specified in Section 12.10.

“Consent Solicitation Statement” has the meaning specified in Section 9.2(d).

“Constituent Corporations” has the meaning specified in Section 2.1(a).

“Contagion Event” means (a) the outbreak of a contagious disease, epidemic or pandemic (including COVID-19) or the continuation, escalation or material worsening thereof and (b) any changes in applicable Law or other directive, policy, guidance or recommendations by any Governmental Authority in response to the foregoing, in each case, whether in place currently or

 

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adopted or modified hereafter, including with respect to any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure or sequester policies.

“Contracts” means any legally binding contracts, agreements, arrangements, undertakings, instruments, commitments, indentures, guarantees, licenses, subcontracts, leases, purchase orders and other arrangements or understandings (and all amendments, side letters, modifications and supplements thereto), whether oral or written.

“control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.

“Copyleft Terms” means use, modification and/or distribution of any Open Source Materials in a manner that, pursuant to the applicable Open Source License, requires that software incorporated into, derived from, linked to, or used or distributed with such Open Source Materials (a) be made available or distributed in a form other than binary (e.g., source code form), (b) be licensed for the purpose of preparing derivative works, (c) be licensed under terms that allow the Company’s or any Subsidiary of the Company’s products or portions thereof or interfaces therefor to be reverse engineered, reverse assembled or disassembled (other than by operation of Law) or (d) be redistributable at no license fee. Open Source Licenses that incorporate Copyleft Terms include the GNU General Public License, the GNU Lesser General Public License, the GNU Affero General Public License, the Mozilla Public License, the Netscape Public License, the Sun Community Source License, the Sun Industry Standards License, the Common Development and Distribution License, the Eclipse Public License and all Creative Commons “sharealike” licenses.

“COVID-19” means SARS-CoV-2 or the novel coronavirus, referred to as COVID-19, and any evolutions, mutations or variants thereof or related to associated epidemics, pandemics or disease outbreaks.

“Customs & Trade Laws” means all applicable export, import, customs and trade, and anti-boycott Laws, regulations or programs administered, enacted or enforced by any Governmental Authority, including but not limited to (a) the Laws, regulations, and programs administered or enforced by U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, the U.S. International Trade Commission, the U.S. Department of Commerce, and the U.S. Department of State; (b) the U.S. Tariff Act of 1930, as amended; (c) the U.S. Export Control Reform Act of 2018 and the Export Administration Regulations, including related restrictions with regard to persons or entities on the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List; (d) the U.S. Arms Export Control Act, as amended, and the International Traffic in Arms Regulations, including related restrictions with regard to persons or entities on the U.S. Department of State’s Debarred List; (e) the U.S. Foreign Trade Regulations; (f) the anti-boycott laws and regulations administered by the U.S. Department of Commerce and the U.S. Department of the Treasury; and (g) all other applicable Laws, regulations, or programs of other countries relating to the same subject matter as the United States Laws described above.

“D&O Indemnified Parties” has the meaning specified in Section 8.7(a).

 

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“DGCL” has the meaning specified in the Recitals hereto.

“Disclosure Letter” means, as applicable, the Company Disclosure Letter or the Acquiror Disclosure Letter.

“DLA” has the meaning specified in Section 12.18(b).

“DLA Privileged Communications” has the meaning specified in Section 12.18(b).

“Dollars” or “$” means lawful money of the United States.

“Earn Out Equityholder” means any holder of Company Common Stock, Company Preferred Stock or Vested RSU Awards as of immediately prior to the Effective Time (for the avoidance of doubt, following the Company Convertible Notes Conversion and the Warrant Settlement).

“Earn Out Exchange Ratio” means the quotient of (i) ten million (10,000,000) divided by (ii) the Fully Diluted Number.

“Earn Out Period” means the period beginning on the Closing Date and ending on the date that is five (5) years after the Closing Date.

“Earn Out Pro Rata Share” means, with respect to each Earn Out Equityholder, a percentage equal to the quotient of:

(a) the sum of (i) the aggregate number of shares of Company Common Stock that are held by such Earn Out Equityholder immediately prior to the Effective Time (for the avoidance of doubt, following the Company Convertible Notes Conversion and the Warrant Settlement) plus (ii) the aggregate number of shares of Company Preferred Stock that are held by such Earn Out Equityholder immediately prior to the Effective Time plus (iii) the aggregate maximum number of shares of Company Capital Stock that would otherwise be issuable assuming full vesting and immediate settlement immediately prior to the Effective Time of all Vested RSU Awards that are held by such Earn Out Equityholder; divided by

(b) the sum of (i) the aggregate number of shares of Company Common Stock that are held by all Earn Out Equityholders immediately prior to the Effective Time (for the avoidance of doubt, following the Company Convertible Notes Conversion and the Warrant Settlement) plus (ii) the aggregate number of shares of Company Preferred Stock that are held by all Earn Out Equityholders immediately prior to the Effective Time plus (iii) the aggregate maximum number of shares of Company Capital Stock that would otherwise be issuable assuming full vesting and immediate settlement immediately prior to the Effective Time of all Vested RSU Awards that are held by all Earn Out Equityholders immediately prior to the Effective Time.

“Earn Out Shares Discount Factor” means such applicable percentage as reasonably determined by the Company as of immediately prior to the Effective Time that is equal to the then-estimated probability that ten million (10,000,000) Company Earn Out Shares will be issued to the Earn Out Equityholders pursuant to Article IV.

 

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“Effective Time” has the meaning specified in Section 2.3(b).

“Environmental Laws” means any and all Laws relating to pollution or the protection of the environment, natural resources or human health and safety or relating to the use, generation, management, manufacture, processing, treatment, storage, transportation, remediation, cleanup, handling, disposal or Release of, or exposure to, Hazardous Materials.

“Equity Interests” means any share, share capital, capital stock, partnership, membership, joint venture or similar interest in any Person (including any stock appreciation, phantom stock, profit participation or similar rights) and any subscription, option, warrant, right or other security (including debt securities) convertible, exchangeable or exercisable therefor.

“ERISA” has the meaning specified in Section 5.13(a).

“ERISA Affiliate” means any entity, trade or business, whether or not incorporated, that together with the Company would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

“Events” has the meaning specified in the definition of Company Material Adverse Effect.

“Exchange Act” means the Securities Exchange Act of 1934.

“Exchange Agent” has the meaning specified in Section 3.2(a).

“Excluded Financing” means any capital raising transaction in which the Company is the issuer, whether through the sale of Equity Interests of the Company or securities exercisable for or convertible or exchangeable into Equity Interests of the Company, provided that (x) the aggregate number of securities issued or issuable by the Company does not result in a change of control of the Company (i.e., issuance of securities representing more than 50% of the issued and outstanding Company Capital Stock), (y) any such capital raising transaction would not delay, impair or alter the terms of the transactions contemplated herein and (z) any such capital raise would be non-dilutive to Acquiror and its stockholders and any PIPE Investors (i.e., all dilution will be borne solely by the Company’s existing equityholders as of the date hereof).

“Excluded Shares” has the meaning specified in Section 3.1(b).

“Export Approvals” has the meaning specified in Section 5.27(a).

“Federal Securities Laws” means the Exchange Act, the Securities Act and the other U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder or otherwise.

“FFCRA” means the Families First Coronavirus Response Act.

“Forward Purchase Agreement” means that certain Forward Purchase Agreement, dated as of January 24, 2021, by and among Acquiror, the Sponsor and GSAM, as amended by that certain First Amendment to Forward Purchase Agreement, dated as of January 31, 2021, and that certain

 

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side letter, dated as of July 18, 2021, and as further amended, restated, modified or supplemented from time to time.

“Forward Purchase Amount” has the meaning specified in the Recitals hereto.

“Forward Purchase Securities” has the meaning specified in the Recitals hereto.

“Fully Diluted Number” means the number of shares of Aggregate Fully Diluted Company Stock.

“GAAP” means generally accepted accounting principles in the United States as in effect from time to time.

“Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs. For example, the “Governing Documents” of a corporation are its certificate of incorporation (or equivalent) and bylaws, the “Governing Documents” of a limited partnership are its limited partnership agreement and certificate of limited partnership and the “Governing Documents” of a limited liability company are its operating agreement and certificate of formation.  For the avoidance of doubt, the Governing Documents of the Company shall include the agreements between the Company and the holders of Preferred Stock (including, without limitation, the Amended and Restated Voting Agreement by and among the Company and certain holders of Equity Interests of the Company dated March 21, 2019).

“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal, arbitrator or arbitration panel.

“Governmental Authorization” has the meaning specified in Section 5.5.

“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority.

“GSAM” has the meaning specified in the Recitals hereto.

“Hazardous Material” means any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is defined, designated, identified or classified as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under, or for which liability or standards of care are imposed by, any Environmental Law, including any petroleum, petroleum distillate or petroleum-derived products, radon, radioactive materials or wastes, per- and polyfluoroalkyl substances, asbestos or asbestos-containing materials, lead or lead-containing materials, urea formaldehyde foam insulation, and polychlorinated biphenyls.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

“Incentive Equity Plan” has the meaning specified in Section 8.1(a).

 

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“Incentive Plan Proposal” has the meaning specified in Section 9.2(c).

“Indebtedness” means with respect to any Person, without duplication, any obligations, contingent or otherwise, in respect of (a) the principal of and premium (if any) in respect of all indebtedness for borrowed money, including accrued interest and any per diem interest accruals, (b) the principal and interest components of capitalized lease obligations under GAAP, (c) amounts drawn (including any accrued and unpaid interest) on letters of credit, bank guarantees, bankers’ acceptances and other similar instruments (solely to the extent such amounts have actually been drawn), (d) the principal of and premium (if any) in respect of obligations evidenced by bonds, debentures, notes and similar instruments, including accrued interest and any per diem interest accruals, (e) interest rate protection agreements and currency obligation swaps, hedges or similar arrangements (without duplication of other indebtedness supported or guaranteed thereby), (f) the principal component of all obligations to pay the deferred and unpaid purchase price of property and equipment which have been delivered, including “earn outs” and “seller notes,” (g) breakage costs, prepayment or early termination premiums, penalties, or other fees or expenses payable as a result of the consummation of the transactions contemplated hereby in respect of any of the items in the foregoing clauses (a) through (f), and (h) all Indebtedness of another Person referred to in clauses (a) through (g) above guaranteed directly or indirectly, jointly or severally. Notwithstanding the foregoing, “Indebtedness” shall not include any accounts payable to trade creditors and accrued expenses arising in the ordinary course of business consistent with past practice.

“Insider” has the meaning specified in Section 5.25(b).

“Intellectual Property” means all intellectual property and industrial property rights and proprietary rights in confidential information of every kind and description throughout the world, including U.S. and foreign (a) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof, (b) trademarks, logos, service marks, trade dress, trade names, design rights, slogans, internet domain names, and other similar designations of source or origin, together with the goodwill of the Company or any of its Subsidiaries or their respective businesses symbolized by or associated with any of the foregoing, (c) copyrights and copyrightable subject matter, (d) rights in software and other computer programs (whether in source code, object code or other form), algorithms, models, databases, compilations and data, technology supporting the foregoing, and all other documentation, including user manuals and training materials, related to any of the foregoing, (e) trade secrets and all other confidential or proprietary information, ideas, know-how, proprietary processes, formulae, models, and methodologies (“Trade Secrets”), (f) social media addresses and accounts and usernames, account names and identifiers and (g) all applications and registrations, and any renewals, extensions and reversions, for the foregoing clauses (a) and (f).

“Interim Period” has the meaning specified in Section 7.1.

“Intervening Event” means an Event occurring after the date of this Agreement (but specifically excluding (a) any Event that relates to or is reasonably likely to give rise to or result in any Business Combination Proposal, (b) any Event described in subsections (ii), (iv), (v) or (vii) of the definition of “Company Material Adverse Effect”; provided, however, that any such Event may be taken into account in determining whether an Intervening Event has occurred to the extent

 

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(but only to the extent) it has a disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to similarly situated Persons operating in the industries in which the Company and its Subsidiaries operate, (c) any change in the price or trading volume of Acquiror Class A Common Stock, or (d) the timing of any approval or clearance of any Governmental Authority required for the consummation of the Merger) that materially and adversely affects the business, assets, liabilities, results of operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, that was not reasonably foreseeable as of the date of this Agreement and is not cured by the Company prior to a Modification in Recommendation.

“Intervening Event Notice” has the meaning specified in Section 9.2(c).

“Intervening Event Notice Period” has the meaning specified in Section 9.2(c).

“Investment Company Act” means the Investment Company Act of 1940.

“IRS” means the Internal Revenue Service.

“JOBS Act” has the meaning specified in Section 6.6(a).

“Key Employees” means each of Lou Rassey, Patrick McCusker, John Nanry, William King and Gus Pinto.

“Knowledge” when used in this Agreement (a) with respect to the Company or any of its Subsidiaries means the actual knowledge of the individuals identified on Section 1.1 of the Company Disclosure Letter and (b) with respect to Acquiror or Merger Sub means the actual knowledge of the individuals identified on Section 1.1 of the Acquiror Disclosure Letter.

“Latham” has the meaning specified in Section 12.18(a).

“Latham Privileged Communications” has the meaning specified in Section 12.18(a).

“Law” means any statute, law, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority.

“Leased Real Property” means all real property leased, licensed, subleased or otherwise used or occupied by the Company or any of its Subsidiaries.

“Legal Proceedings” has the meaning specified in Section 5.10.

“Letter of Transmittal” has the meaning specified in Section 3.2(b).

“Licenses” means any approvals, authorizations, consents, notices, waivers, declarations, licenses, registrations, permits or certificates of a Governmental Authority.

“Lien” means all liens, mortgages, deeds of trust, pledges, hypothecations, encumbrances, rights of first refusal or offer, security interests, options, leases, subleases, restrictions, claims or other liens of any kind whether consensual, statutory or otherwise.

 

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“Major Company Stockholder” means each of the holders of Company Capital Stock set forth on Section 9.2(d) of the Company Disclosure Letter.

“Material Contracts” has the meaning specified in Section 5.12(a).

“Merger” has the meaning specified in the Recitals hereto.

“Merger Certificate” has the meaning specified in Section 2.1(a).

“Merger Consideration Exchange Ratio” means an amount equal to the quotient of (a) (i) the number of shares of Acquiror Class A Common Stock constituting the Aggregate Merger Consideration minus (ii) ten million (10,000,000), and minus (iii) the Additional Award Shares, divided by (b) the Fully Diluted Number.

“Merger Proposal” has the meaning specified in Section 9.2(c).

“Merger Sub” has the meaning specified in the Preamble hereto.

“Merger Sub Capital Stock” means the shares of the common stock, par value $0.01 per share, of Merger Sub.

“Minimum Available Acquiror Cash Amount” has the meaning specified in Section 8.2(a).

“Minimum PIPE Investment Amount” has the meaning specified in Section 6.12(d).

“Modification in Recommendation” has the meaning specified in Section 9.2(c).

“NASDAQ” has the meaning specified in Section 6.6(c).

“NASDAQ Proposal” has the meaning specified in Section 9.2(c).

“Net Merger Consideration” means a number of shares of Acquiror Class A Common Stock equal to the remainder of (a) the Aggregate Merger Consideration minus (b) 10,000,000 shares of Acquiror Class A Common Stock minus (c) the Base Award Shares minus (d) the Additional Award Shares.

“Offer Documents” has the meaning specified in Section 9.2(a)(i).

“Open Source License” means any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license, including any license approved by the Open Source Initiative or any Creative Commons License.

“Open Source Materials” means any software subject to an Open Source License.

“Ordinary Course Agreements” means (i) any customary commercial Contracts entered into in the ordinary course of business not primarily related to Taxes and (ii) with respect to the Company, any such agreement solely between the Company and its existing Subsidiaries and, with respect to the Acquiror, any such agreement solely between Acquiror and Merger Sub.

 

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“Permitted Liens” means (a) mechanic’s, materialmen’s and similar Liens arising in the ordinary course of business with respect to any amounts (i) not yet due and payable or which are being contested in good faith through appropriate proceedings and (ii) for which adequate accruals or reserves have been established in accordance with GAAP, (b) Liens for Taxes (i) not yet due and payable or (ii) which are being contested in good faith through appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP, (c) defects or imperfections of title, easements, encroachments, covenants, rights-of-way, conditions, restrictions and other similar charges or encumbrances that do not, in the aggregate, materially impair the value or materially interfere with the present or contemplated use of the Leased Real Property, (d) with respect to any Leased Real Property (i) the interests and rights in favor of the respective lessors with respect thereto, including any statutory landlord liens and any other Lien thereon, (ii) any Lien permitted under a Real Property Lease, and (iii) subject to clause (c) above, any Liens encumbering the underlying fee title of the real property of which the Leased Real Property is a part, (e) zoning, building, entitlement and other land use and environmental regulations promulgated by any Governmental Authority that do not, in the aggregate, materially interfere with the current use of, or materially impair the value of, the Leased Real Property, (f) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business consistent with past practice, (g) ordinary course purchase money Liens and other Liens securing rental payments under operating or capital lease arrangements for amounts not yet due or payable, (h) other Liens arising in the ordinary course of business and not incurred in connection with the borrowing of money or in connection with workers’ compensation, unemployment insurance or other types of social security that do not, in the aggregate, materially impair the value or materially interfere with the businesses of the Company and its Subsidiaries, taken as a whole, (i) reversionary rights in favor of landlords under any Real Property Leases with respect to any of the buildings or other improvements owned by the Company or any of its Subsidiaries, (j) restrictions on transfer under applicable Securities Laws and (k) all other Liens that do not, in the aggregate, materially impair the value or materially interfere with the businesses of the Company and its Subsidiaries, taken as a whole.

“Person” means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, Governmental Authority or instrumentality or other entity of any kind.

“Personal Information” has the meaning specified in Section 5.22(a).

“PIPE Investment” means the purchase of shares of Acquiror Class A Common Stock pursuant to the Subscription Agreements.

“PIPE Investment Amount” means the aggregate gross purchase price received by Acquiror prior to or substantially concurrently with Closing for the shares in the PIPE Investment.

“PIPE Investors” means those certain investors participating in the PIPE Investment pursuant to the Subscription Agreements.

“Privacy and Cybersecurity Requirements” has the meaning specified in Section 5.22(a).

“Prospectus” has the meaning specified in Section 12.1.

 

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“Proxy Statement” has the meaning set forth in Section 9.2(a)(i).

“Purchase Plan” has the meaning set forth in Section 8.1(a).

“Purchase Plan Proposal” has the meaning specified in Section 9.2(c).

“Real Property Leases” has the meaning specified in Section 5.20(a)(ii).

“Registration Rights Agreement” has the meaning specified in the Recitals hereto.

“Registration Statement” means the Registration Statement on Form S-4, or other appropriate form, including any pre-effective or post-effective amendments or supplements thereto, to be filed with the SEC by Acquiror under the Securities Act with respect to the Registration Statement Securities.

“Registration Statement Securities” has the meaning specified in Section 9.2(a)(i).

“Release” means any release, spill, emission, leaking, pumping, pouring, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of materials into or through the indoor or outdoor environment or into or out of any property, including the movement of materials through or in the air, soil, surface water, or groundwater.

“Representatives” means, with respect to any Person, such Person’s Affiliates and its and their respective directors, officers, employees, managers, members, stockholders, partners, incorporators, trustees, consultants, counsel, financial advisors, accountants, auditors or authorized representatives or agents acting on the behalf of such Person.

“Restricted Person” means any Person identified on the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List, or the U.S. Department of State’s Debarred List or Nonproliferation Sanctions.

“Sanctioned Country” means at any time, a country or territory which is itself the subject or target of any country-wide or territory-wide Sanctions Laws (at the time of this Agreement, the Crimea region, Cuba, Iran, North Korea and Syria).

“Sanctioned Person” means (a) any Person identified in any Sanctions Laws-related list of sanctioned Persons maintained by (i) the United States (including the U.S. Department of the Treasury’s Office of Foreign Assets Control or the U.S. Department of State), (ii) the United Kingdom, (iii) the United Nations Security Council, (iv) the European Union or any European Union member state, or (v) any jurisdiction in which the Company or any of its Subsidiaries conduct business, (b) any Person located, organized, or resident in, organized in, or a Governmental Authority or government instrumentality of, any Sanctioned Country, and (c) any Person directly or indirectly owned 50 percent or more or controlled by one or more Person described in clause (a) or (b).

“Sanctions Laws” means those trade, economic and financial sanctions Laws administered, enacted or enforced from time to time by (a) the United States (including the U.S. Department of the Treasury’s Office of Foreign Assets Control or the U.S. Department of State), (b) the United

 

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Kingdom, (c) the United Nations Security Council, (d) the European Union or any European Union member state or (e) any jurisdiction in which the Company or any of its Subsidiaries conduct business.

“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.

“SEC” means the United States Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933.

“Securities Laws” means Federal Securities Laws and any other applicable foreign or domestic securities or similar Laws.

“Sponsor” means ENNV Holdings, LLC, a Delaware limited liability company and the sponsor of Acquiror.

“Sponsor Earn Out Shares” has the meaning specified in the Sponsor Support Agreement.

“Sponsor Support Agreement” has the meaning specified in the Recitals hereto.

“Stock Price Level” means the volume-weighted average of a share of Acquiror Class A Common Stock on NASDAQ (or other exchange or other market where the Acquiror Class A Common Stock is then traded) greater than the applicable price for any twenty (20) trading days (which may or may not be consecutive) within a thirty (30) trading day period (as equitably adjusted on account of any subdivision, stock split, reverse stock split, stock dividend, combination, reclassification or similar equity restructuring transaction or any changes in the Acquiror Class A Common Stock as a result of a merger, consolidation, reorganization, recapitalization, business combination or similar transaction involving Acquiror).

“Stockholder Notice” has the meaning specified in Section 9.2(d).

“Subscription Agreements” means the subscription agreements entered into on or prior to the date hereof (or pursuant to an assignment or transfer permitted pursuant to Section 8.9) pursuant to which the PIPE Investment will be consummated.

“Subsidiary” means, with respect to a Person, a corporation, company, limited liability company, partnership, joint venture, association or other entity of which (i) more than fifty percent (50%) of the voting power of the Equity Interests is owned or controlled, directly or indirectly, by such Person or (ii) such Person or another Subsidiary thereof serves as a general partner or managing member.

“Surrender Documentation” has the meaning specified in Section 3.2(b).

“Surviving Company” has the meaning specified in Section 2.1(b).

“Tax Return” means any return, declaration, report, statement, information statement or other document filed or required to be filed with any Governmental Authority with respect to

 

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Taxes, including any claims for refunds of Taxes, any information returns and any schedules, attachments, amendments or supplements of any of the foregoing.

“Taxes” means any and all federal, state, local, foreign or other taxes imposed by any Governmental Authority, including all income, gross receipts, license, payroll, recapture, net worth, employment, excise, severance, stamp, escheat, occupation, premium, windfall profits, environmental, customs duties, capital stock, ad valorem, value added, inventory, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, governmental charges, duties, levies and other similar charges imposed by a Governmental Authority in the nature of a tax, alternative or add-on minimum, or estimated taxes, and any interest, penalty, or addition relating thereto.

“Terminating Acquiror Breach” has the meaning specified in Section 11.1(g).

“Terminating Company Breach” has the meaning specified in Section 11.1(e).

“Top Customers” has the meaning specified in Section 5.30(a).

“Top Suppliers” has the meaning specified in Section 5.29(a).

“Trade Secrets” has the meaning specified in the definition of Intellectual Property.

“Transaction Proposals” has the meaning specified in Section 9.2(c).

“Transfer Taxes” has the meaning specified in Section 7.8(b).

“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of the Treasury (whether in final, proposed or temporary form), as the same may be amended from time to time.

“Triggering Event” means a Triggering Event I or a Triggering Event II, as applicable.

“Triggering Event I” means the first date after the Closing Date, but within the Earn Out Period, on which the Stock Price Level is greater than fifteen Dollars ($15.00).

“Triggering Event II” means the first date after the Closing Date, but within the Earn Out Period, on which the Stock Price Level is greater than twenty Dollars ($20.00).

“Trust Account” has the meaning specified in Section 12.1.

“Trust Agreement” has the meaning specified in Section 6.8.

“Trustee” has the meaning specified in Section 6.8.

“Unaudited Financial Statements” has the meaning specified in Section 5.8(a).

“Vested RSU Awards” means the applicable portion of the Company Restricted Stock Unit awards that would otherwise vest upon the Closing subject to continued services of the applicable holder thereof through the Closing or that is vested but not settled as of the Closing.

 

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“WARN” has the meaning specified in Section 5.14(j).

“Warrant Settlement” has the meaning specified in the Recitals hereto.

“Working Capital Loans” means working capital loans of up to one million five hundred thousand Dollars ($1,500,000) that can be made by Affiliates of Acquiror to Acquiror prior to the consummation of the Business Combination, which loaned amounts may be converted, at the option of the lender, into warrants identical to the Acquiror Private Warrants at a price of one dollar and fifty cents ($1.50) per warrant upon consummation of the Business Combination (such warrants, “Working Capital Warrants”).

“Working Capital Warrants” has the meaning specified in the definition of Working Capital Loans.

“Written Consent” has the meaning specified in Section 9.2(d).

Section 1.2.Construction.

(a)Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (iv) the terms “Article” or “Section” refer to the specified Article or Section of this Agreement, (v) the words “include” and “including” shall mean “including, without limitation” and (vi) the word “or” shall be disjunctive but not exclusive.

(b)Unless the context of this Agreement otherwise requires, references to any statute shall include all regulations promulgated thereunder and references to any statute or regulation shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing such statute or regulation.

(c)Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified.

(d)All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.

(e)The term “fraud” means an actual and intentional fraud by a party to this Agreement in the making of a representation or warranty in Article IVor Article V (as applicable); provided, that such actual and intentional fraud of such party shall only be deemed to exist if such party had actual knowledge (as opposed to imputed or constructive knowledge) that such representation or warranty made by such Person in Article IV or Article V (as applicable, and in each case as qualified by the Company Disclosure Letter or the Acquiror Disclosure Letter, as applicable) was actually false when made, and such representation or warranty was made with the express intention that the other party to this Agreement act or refrain from acting in reliance thereon.

 

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(f)The words “made available” (or any phrase of similar import) mean that the subject documents or other materials were included in and available to Acquiror and its Representatives at the “Project Wrigley” electronic data room maintained by the Company and hosted by Intralinks, Inc. at least four (4) Business Days prior to the date of this Agreement.

Article II
THE MERGER; CLOSING

Section 2.1.The Merger.

(a)Upon the terms and subject to the conditions set forth in this Agreement, Acquiror, Merger Sub and the Company (Merger Sub and the Company sometimes being referred to herein as the “Constituent Corporations”) shall cause Merger Sub to be merged with and into the Company, with the Company being the surviving entity in the Merger. The Merger shall be consummated in accordance with this Agreement and shall be evidenced by a certificate of merger with respect to the Merger (as so filed, the “Merger Certificate”), executed by the Constituent Corporations in accordance with the relevant provisions of the DGCL, such Merger to be effective as of the Effective Time.

(b)Upon consummation of the Merger, the separate corporate existence of Merger Sub shall cease and the Company, as the surviving entity of the Merger (hereinafter referred to for the periods at and after the Effective Time as the “Surviving Company”), shall continue its corporate existence under the DGCL, as a wholly owned subsidiary of Acquiror.

Section 2.2.Effects of the Merger. At and after the Effective Time, the Surviving Company shall thereupon and thereafter possess all of the rights, privileges, powers and franchises, of a public as well as a private nature, of the Constituent Corporations, and shall become subject to all of the restrictions, disabilities and duties of each of the Constituent Corporations; and all rights, privileges, powers and franchises of each Constituent Corporation, and all property, real, personal and mixed, and all debts due to each such Constituent Corporation, on whatever account, shall become vested in the Surviving Company; and all property, rights, privileges, powers and franchises, and all and every other interest, shall become thereafter the property of the Surviving Company as they are of the Constituent Corporations; and the title to any real property vested by deed or otherwise or any other interest in real estate vested by any instrument or otherwise in either of such Constituent Corporations shall not revert or become in any way impaired by reason of the Merger; but all Liens upon any property of a Constituent Corporation shall thereafter attach to the Surviving Company and shall be enforceable against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it; all of the foregoing in accordance with the applicable provisions of the DGCL.

Section 2.3.Closing; Effective Time.

(a)In accordance with the terms and subject to the conditions of this Agreement, the closing of the Merger (the “Closing”) shall occur by electronic exchange of documents at a time and date to be specified in writing by the parties to this Agreement, which shall be no later than the date which is three (3) Business Days after the first date on which all conditions set forth in Article X shall have been satisfied or waived (other than those conditions

 

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that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof at the Closing) or such other time, date and place as Acquiror and the Company may mutually agree in writing. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date.”

(b)Subject to the satisfaction or waiver of all of the conditions set forth in Article X of this Agreement, and provided this Agreement has not theretofore been terminated pursuant to its terms, Acquiror, Merger Sub, and the Company shall cause the Merger Certificate to be executed and duly submitted for filing with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL. The Merger shall become effective at the time when the Merger Certificate has been accepted for filing by the Secretary of State of the State of Delaware, or at such later time as may be agreed by Acquiror and the Company in writing and specified in the Merger Certificate (the “Effective Time”).

Section 2.4.Closing Deliverables.

(a)At the Closing, the Company will deliver or cause to be delivered:

(i)to Acquiror, a certificate duly executed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 10.2(a), Section 10.2(b) and Section 10.2(d) have been fulfilled;

(ii)to Acquiror, evidence that all Affiliate Agreements (other than those set forth on Section 7.4 of the Company Disclosure Letter) have been terminated or settled at or prior to the Closing without further liability to Acquiror, the Company, the Surviving Company or any of the Company’s Subsidiaries; and

(iii)to Acquiror, a certificate duly executed on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service (which shall be mailed by Acquiror to the IRS following the Closing) prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).

(b)At the Closing, Acquiror will deliver or cause to be delivered:

(i)to the Exchange Agent, the Net Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 3.2;

(ii)to the Company, a certificate duly executed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 10.3(a) and Section 10.3(b) have been fulfilled; and

 

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(iii)to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 8.6), effective as of the Effective Time.

(c)On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued and unpaid transaction expenses of Acquiror and its Affiliates relating to a Business Combination (to the extent then owed by Acquiror) as set forth on a written statement to be delivered to the Company not less than two (2) Business Days prior to the Closing Date (the “Acquiror Transaction Expenses”) and (ii) all accrued and unpaid Company Transaction Expenses as set forth on a written statement to be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any unpaid Company Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Surviving Company for further payment to such employee, independent contractor, officer or director through the Surviving Company’s payroll.

Section 2.5.Governing Documents.

(a)The certificate of incorporation and bylaws of the Company in effect immediately prior to the Effective Time shall be the certificate of incorporation and bylaws of the Surviving Company until thereafter amended as provided therein and under the DGCL.

(b)At the Effective Time, Acquiror’s amended and restated certificate of incorporation and bylaws shall be amended and restated substantially to the forms attached hereto as Exhibit A and Exhibit B (with such changes as may be agreed in writing by Acquiror and the Company), respectively, and such shall be the certificate of incorporation and bylaws of Acquiror until thereafter amended as provided therein and under the DGCL.

Section 2.6.Directors and Officers.

(a)The (i) officers of the Company as of immediately prior to the Effective Time shall be the officers of the Surviving Company from and after the Effective Time, and (ii) the directors of the Company as of immediately prior to the Effective Time shall be the directors of the Surviving Company from and after the Effective Time, in each case, each to hold office in accordance with the Governing Documents of the Surviving Company and the DGCL.

(b)The parties shall take all actions necessary to ensure that, from and after the Effective Time, the Persons identified as the initial post-Closing directors and officers of Acquiror in accordance with the provisions of Section 8.6 shall be the directors and officers (and in the case of such officers, holding such positions as are set forth on Section 2.6(b) of the Company Disclosure Letter), respectively, of Acquiror, each to hold office in accordance with the Governing Documents of Acquiror and the DGCL.

Section 2.7.Tax Free Reorganization Matters. Each of the parties intends that, for United States federal income tax purposes, (a) the Merger will qualify as a “reorganization” within

 

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the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder and (b) this Agreement is, and is hereby adopted as, a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3.

Article III
EFFECTS OF THE MERGER ON THE COMPANY CAPITAL STOCK AND EQUITY AWARDS

Section 3.1.Conversion of Securities.

(a)Immediately prior to the Effective Time, the Company shall cause the outstanding principal together with all accrued and unpaid interest due on the Company Convertible Notes immediately prior to the Effective Time to be automatically converted into a number of shares of Company Common Stock as set forth in Section 4(a)(2) of the Company Convertible Note Purchase Agreement (the “Company Convertible Notes Conversion”). All of the Company Convertible Notes converted into shares of Company Common Stock shall no longer be outstanding and shall cease to exist and each holder of Company Convertible Notes shall thereafter cease to have any rights with respect to such securities.

(b)At the Effective Time (and, for the avoidance of doubt, following the Company Convertible Notes Conversion and the Warrant Settlement), by virtue of the Merger and without any action on the part of any holder of Company Capital Stock, each share of Company Capital Stock that is issued and outstanding immediately prior to the Effective Time (other than (x) any Company Common Stock subject to Company Awards (which shall be subject to Section 3.3), (y) any shares of Company Capital Stock held in the treasury of the Company, which shares shall be canceled as part of the Merger and shall not constitute “Company Capital Stock” hereunder, and (z) any shares of Company Capital Stock held by stockholders of the Company who have perfected and not withdrawn a demand for appraisal rights pursuant to the applicable provisions of the DGCL (collectively, “Excluded Shares”)), shall be canceled and converted into the right to receive the applicable portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d) and a number of Company Earn Out Shares (in accordance with such stockholder’s Earn Out Pro Rata Share) in accordance with Article IV.

(c)At the Effective Time, by virtue of the Merger and without any action on the part of Acquiror or Merger Sub, each share of Merger Sub Capital Stock that is issued and outstanding immediately prior to the Effective Time, shall be converted into a share of common stock of the Surviving Company.

(d)Each holder of Company Capital Stock as of immediately prior to the Effective Time (other than Excluded Shares) shall be entitled to receive at the Effective Time the applicable portion of the Aggregate Merger Consideration equal to (i) the Merger Consideration Exchange Ratio, multiplied by (ii) the number of shares of Company Capital Stock held by such holder as of immediately prior to the Effective Time, with fractional shares rounded down to the nearest whole share. Notwithstanding anything in this Agreement to the contrary, no fractional shares of Acquiror Common Stock or cash in lieu thereof shall be issued in the Merger.

 

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(e)In no event shall the number of shares of Acquiror Class A Common Stock issued as Aggregate Merger Consideration (including, for the avoidance of doubt, the Company Earn Out Shares) pursuant to this Section 3.1, Section 3.3 and Article IV exceed one hundred million (100,000,000) shares of Acquiror Class A Common Stock in the aggregate (which shall be equitably adjusted on account of any subdivision, stock split, reverse stock split, stock dividend, combination, reclassification or similar equity restructuring transaction or any changes in the Acquiror Class A Common Stock as a result of a merger, consolidation, reorganization, recapitalization, business combination or similar transaction involving Acquiror).

Section 3.2.Exchange Procedures.

(a)Prior to the Closing, Acquiror shall appoint an exchange agent approved by the Company (such approval not to be unreasonably withheld, conditioned or delayed) (the “Exchange Agent”) to act as the agent for the purpose of paying the Net Merger Consideration to the Company’s stockholders. At or before the Effective Time, Acquiror shall deposit with the Exchange Agent the number of shares of Acquiror Common Stock equal to the Net Merger Consideration.

(b)Reasonably promptly after the Effective Time (and in any event within two (2) Business Days thereafter), Acquiror shall send or shall cause the Exchange Agent to send, to each record holder of Company Capital Stock as of immediately prior to the Effective Time, whose Company Capital Stock was converted pursuant to Section 3.1(a) into the right to receive a portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d), (i) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and the risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 3.2(e)) and transfer of each share to the Exchange Agent, and which letter of transmittal will be in customary form and have such other provisions as Acquiror may reasonably specify) for use in such exchange (each, a “Letter of Transmittal”) and (ii) instructions for surrendering the Certificates (or affidavits of loss in lieu of the Certificates (together with any bond) as provided in Section 3.2(e)) to the Exchange Agent (the “Surrender Documentation”); provided, however, that the Exchange Agent shall not be required to deliver the Surrender Documentation to any holder of Company Capital Stock that has delivered its Surrender Documentation with respect to such holder’s Certificates to the Exchange Agent at least two (2) Business Days prior to the Closing Date.

(c)Each holder of Company Capital Stock that has been converted into the right to receive a portion of the Aggregate Merger Consideration pursuant to Section 3.1(a) shall be entitled to receive such portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d), upon receipt of such holder’s Certificates, together with a duly completed and validly executed Letter of Transmittal and such other documents as may reasonably be requested by the Exchange Agent. Upon surrender of a Certificate (or affidavit of loss in lieu of the Certificate (together with any bond) as provided in Section 3.2(e)) to the Exchange Agent in accordance with the Surrender Documentation, the Exchange Agent will deliver to the holder of such Certificate in exchange therefor such holder’s portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d), in each case, in accordance with this Section 3.2(c); provided, however, that if the holder of such Certificate delivers to the Exchange Agent the Surrender Documentation with respect to such holder’s Certificates at least two (2) Business Days

 

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prior to the Closing Date, the Exchange Agent shall deliver to the holder of such Certificate in exchange therefor such holder’s portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d) covered by such Surrender Documentation on the Closing Date or as promptly as practicable thereafter. The Certificate so surrendered shall forthwith be cancelled. Until so surrendered, each Certificate shall represent after the Effective Time for all purposes only the right to receive the applicable portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d) attributable to such Certificate. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates. In the event of a transfer of ownership of shares of Company Capital Stock that is not registered in the transfer records of the Company, the applicable portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d) to be delivered upon due surrender of the Certificate may be issued to such transferee solely if the Certificate formerly representing such shares of Company Capital Stock is presented to the Exchange Agent, accompanied by all documents reasonably acceptable to the Exchange Agent required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable.

(d)Promptly following the date that is one (1) year after the Effective Time, Acquiror shall instruct the Exchange Agent to deliver to Acquiror all documents in its possession relating to the transactions contemplated hereby, and the Exchange Agent’s duties shall terminate. Thereafter, any portion of the Aggregate Merger Consideration that remains unclaimed shall be returned to Acquiror, and any Person that was a holder of Company Capital Stock as of immediately prior to the Effective Time that has not exchanged such Company Capital Stock for the applicable portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d), in each case, in accordance with this Section 3.2 prior to the date that is one (1) year after the Effective Time, may transfer such Company Capital Stock to Acquiror and (subject to applicable abandoned property, escheat and similar Laws) receive in consideration therefor, and Acquiror shall promptly deliver, such applicable portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d) without any interest thereupon. None of Acquiror, Merger Sub, the Company, the Surviving Company or the Exchange Agent shall be liable to any Person in respect of any of the Aggregate Merger Consideration delivered to a public official pursuant to and in accordance with any applicable abandoned property, escheat or similar Laws. If any such Equity Interests shall not have been transferred immediately prior to such date on which any amounts payable pursuant to this Article III would otherwise escheat to or become the property of any Governmental Authority, any such amounts shall, to the extent permitted by applicable Law, become the property of the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.

(e)In the event any Certificate shall have been lost, stolen or destroyed: (i) upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and (ii) if required by Acquiror, the posting by such Person of a bond in customary amount and upon such terms as may be required by Acquiror as indemnity against any claim that may be made against it or the Surviving Company with respect to such Certificate, the Exchange Agent will issue the portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d) attributable to such Certificate (after giving effect to any required Tax withholdings as provided in Section 3.4).

 

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(f)At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers of Company Capital Stock that were outstanding immediately prior to the Effective Time.

Section 3.3.Treatment of Company Awards.

(a)As of the Effective Time, each Company Option that is then outstanding shall be converted into an option relating to shares of Acquiror Class A Common Stock upon substantially the same terms and conditions (but taking into account any changes thereto provided for in the Company Incentive Plan, in any award agreement or in such Company Option by reason of this Agreement or the transactions contemplated hereby) as are in effect with respect to such Company Option immediately prior to the Effective Time, including with respect to vesting and termination-related provisions (each, an “Acquiror Option”), except that (i) such Acquiror Option shall represent the right to purchase that whole number of shares of Acquiror Class A Common Stock (rounded down to the nearest whole share) equal to the product of (A) the number of shares of Company Common Stock subject to such Company Option, multiplied by (B) the Company Award Exchange Ratio, (ii) the exercise price per share for each such Acquiror Option shall be equal to the quotient of (A) the exercise price per share of such Company Option in effect immediately prior to the Effective Time, divided by (B) the Company Award Exchange Ratio (the exercise price per share, as so determined, being rounded up to the nearest full cent). The conversion of the Company Options will be made in a manner consistent with Treasury Regulation Section 1.424-1, such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the Code. As of the Effective Time, all Company Options shall no longer by outstanding and each holder of an Acquiror Option will cease to have any rights with respect to such Company Options except as set forth herein.

(b)As of the Effective Time, each Company Restricted Stock Award that is then outstanding shall be converted into a restricted stock award relating to shares of Acquiror Class A Common Stock upon substantially the same terms and conditions (but taking into account any changes thereto provided for in the Company Incentive Plan, in any award agreement or in such Company Restricted Stock Award by reason of this Agreement or the transactions contemplated hereby) as are in effect with respect to such Company Restricted Stock Award immediately prior to the Effective Time, including with respect to vesting and termination-related provisions (each, an “Acquiror Restricted Stock Award”), except that such Acquiror Restricted Stock Award shall represent that whole number of shares of Acquiror Class A Common Stock (rounded down to the nearest whole share) equal to the product of (A) the number of shares of Company Common Stock subject to such Company Restricted Stock Award, multiplied by (B) the Company Award Exchange Ratio. As of the Effective Time, all Company Restricted Stock Awards shall no longer by outstanding and each holder of an Acquiror Restricted Stock Award will cease to have any rights with respect to such Company Restricted Stock Awards except as set forth herein.

(c)Each Vested RSU Award shall automatically accelerate vesting and become fully vested as of immediately prior to the Effective Time and shall be canceled and converted as of the Effective Time into (i) the right to receive an issuance of a number of shares of Acquiror Class A Common Stock equal to the product of (1) the number of such Company Restricted Stock Units, multiplied by (2) the Merger Consideration Exchange Ratio, with any fractional shares

 

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rounded down to the nearest whole share, and (ii) the right to receive a number of Company Earn Out Shares in accordance with Article IV. Such shares of Acquiror Class A Common Stock (other than any Company Earn Out Shares which are to be issued in accordance with Article IV) shall be issued to the holder of the Vested RSU Award in settlement thereof as soon as administratively practicable following the Closing, but no later than March 15^th of the applicable calendar year that first commences following the Closing.

(d)As of the Effective Time, each Company Restricted Stock Unit award that is outstanding and unvested immediately prior to the Effective Time and which is not a Vested RSU Award shall be converted into an award of restricted stock units relating to shares of Acquiror Class A Common Stock (each, an “Acquiror Restricted Stock Unit Award”) with substantially the same terms and conditions (but taking into account any changes thereto provided for in the Company Incentive Plan, in any award agreement or in such Company Restricted Stock Unit award by reason of this Agreement or the transactions contemplated hereby) as were applicable to such Company Restricted Stock Unit award immediately prior to the Effective Time, including with respect to vesting and termination-related provisions with such adjustments to any performance-vesting metrics as deemed necessary and appropriate by the Company (and reasonably acceptable to Acquiror), except that such Acquiror Restricted Stock Unit Award shall represent a right to receive a number of shares of Acquiror Class A Common Stock equal to the product of (A) the number of shares of Company Common Stock subject to such Company Restricted Stock Unit award immediately prior to the Effective Time, multiplied by (B) the Company Award Exchange Ratio, with any fractional shares rounded down to the nearest whole share.

(e)The Company shall take all necessary actions to effect the treatment of Company Awards pursuant to Section 3.3(a) and Section 3.3(d), respectively, in accordance with the Company Incentive Plan and the applicable award agreements. The Board of Directors of the Company shall amend the Company Incentive Plan and take all other necessary actions, effective as of immediately prior to the Closing, in order to provide that no new Company Awards will be granted under the Company Incentive Plan or in respect of any equity reserve provided thereunder.

Section 3.4.Withholding. Notwithstanding any other provision of this Agreement, Acquiror, Merger Sub, the Company, the Surviving Company and the Exchange Agent and their respective agents, as applicable, shall be entitled to deduct and withhold from any amount payable pursuant to this Agreement such Taxes that are required to be deducted and withheld from such amounts under the Code or any other applicable Law (as reasonably determined by Acquiror, Merger Sub, the Company, the Surviving Company or the Exchange Agent or their agent, respectively); provided, that Acquiror, Merger Sub, the Company, the Surviving Company and the Exchange Agent or their agent shall use commercially reasonable efforts to provide the Person in respect of whom such withholding or deduction is expected to be made with at least three (3) days prior written notice of any amounts that it intends to withhold in connection with the payment of the Aggregate Merger Consideration and will reasonably cooperate with such Person to reduce or eliminate any applicable withholding. To the extent that any amounts are so deducted and withheld, such deducted and withheld amounts shall be (a) timely remitted to the appropriate Governmental Authority and (b) treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

 

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Section 3.5.Appraisal Rights.

(a)Notwithstanding any provision of this Agreement to the contrary and to the extent available under the DGCL, shares of Company Capital Stock that are outstanding immediately prior to the Effective Time and that are held by stockholders of the Company who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have demanded properly in writing appraisal for such Company Capital Stock in accordance with Section 262 of the DGCL and otherwise complied with all of the provisions of the DGCL relevant to the exercise and perfection of dissenters’ rights shall not be converted into, and such stockholders shall have no right to receive, the applicable portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d) or Company Earn Out Shares in accordance with Article IV related to such shares of Company Capital Stock unless and until such stockholder fails to perfect or withdraws or otherwise loses his, her or its right to appraisal and payment under the DGCL. Any stockholder of the Company who fails to perfect or who effectively withdraws or otherwise loses his, her or its dissenters’ rights to appraisal of such shares of Company Capital Stock under Section 262 of the DGCL, shall thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the applicable portion of the Aggregate Merger Consideration as determined pursuant to Section 3.1(d) and Company Earn Out Shares (in accordance with his, her or its Earn Out Pro Rata Share), if any, in accordance with Article IV related to such shares of Company Capital Stock, without any interest thereon.

(b)Prior to the Closing, the Company shall give Acquiror (i) prompt notice of any demands for appraisal rights received by the Company in writing and any withdrawals of such demands made in writing, and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for appraisal under the DGCL. The Company shall not, except with the prior written consent of Acquiror, make any payment with respect to any demands for appraisal rights or offer to settle or settle any such demands.

Article IV
EARN OUT

Section 4.1.Conversion of Securities.

(a)Following the Closing, and as additional consideration for the Company Capital Stock, promptly (but in any event within ten (10) Business Days) after the occurrence of a Triggering Event, Acquiror shall issue or cause to be issued to the Earn Out Equityholders (in accordance with their respective Earn Out Pro Rata Shares) the following shares of Acquiror Class A Common Stock, as applicable (which shall be equitably adjusted on account of any subdivision, stock split, reverse stock split, stock dividend, combination, reclassification or similar equity restructuring transaction or any changes in the Acquiror Class A Common Stock as a result of a merger, consolidation, reorganization, recapitalization, business combination or similar transaction involving Acquiror) (as so adjusted, the “Company Earn Out Shares”), upon the terms and subject to the conditions set forth in this Agreement and the other agreements contemplated hereby:

 

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(i)upon the occurrence of Triggering Event I, a one-time aggregate issuance of a number of Company Earn Out Shares equal to five million (5,000,000); and

(ii)upon the occurrence of Triggering Event II, a one-time aggregate issuance of a number of Company Earn Out Shares equal to five million (5,000,000).

(b)For the avoidance of doubt, the Earn Out Equityholders shall be entitled to receive Company Earn Out Shares upon the occurrence of each Triggering Event; provided, however, that each Triggering Event shall only occur once, if at all, and in no event shall the Earn Out Equityholders be entitled to receive more than ten million (10,000,000) Company Earn Out Shares in the aggregate (which shall be equitably adjusted on account of any subdivision, stock split, reverse stock split, stock dividend, combination, reclassification or similar equity restructuring transaction or any changes in the Acquiror Class A Common Stock as a result of a merger, consolidation, reorganization, recapitalization, business combination or similar transaction involving Acquiror); provided, further, that Triggering Event I and Triggering Event II may be achieved at the same time or over the same overlapping trading days.

(c)At all times during the Earn Out Period, Acquiror shall keep available for issuance a sufficient number of shares of unissued Acquiror Class A Common Stock to permit Acquiror to satisfy its issuance obligations set forth in this Article IV and shall take all actions required to increase the authorized number of Acquiror Class A Common Stock if at any time there shall be insufficient unissued Acquiror Class A Common Stock to permit such reservation.

(d)Acquiror shall take such actions as are reasonably requested by Earn Out Equityholders to evidence the issuances pursuant to this Article IV, including through the provision of an updated stock ledger showing such issuances (as certified by an officer of Acquiror responsible for maintaining such ledger to the applicable registrar or transfer agent of Acquiror).

(e)Notwithstanding anything to the contrary contained herein, no fraction of a Company Earn Out Share will be issued by virtue of the Triggering Event, and each Person who would otherwise be entitled to a fraction of a Company Earn Out Share (after aggregating all fractional Company Earn Out Shares that otherwise would be received by such holder) shall instead have the number of Company Earn Out Shares issued to such Person rounded down to the nearest whole Company Earn Out Share.

Section 4.2.Acceleration Event. If, during the Earn Out Period, there is an Acquiror Sale that will result in the holders of Acquiror Class A Common Stock receiving a per share price (based on the value of the cash, securities or in-kind consideration being delivered in respect of such Acquiror Class A Common Stock, as determined in good faith by the Board of Directors of Acquiror) equal to or in excess of the applicable Stock Price Level required in connection with any Triggering Event (an “Acceleration Event”), then immediately prior to the consummation of such Acquiror Sale (a) any such Triggering Event that has not previously occurred shall be deemed to have occurred and (b) Acquiror shall issue the applicable Company Earn Out Shares to the Earn Out Equityholders (in accordance with their respective Earn Out Pro Rata Share), and the Earn Out Equityholders shall be eligible to participate in such Acquiror Sale. If, during the Earn Out Period, there is an Acquiror Sale that will result in the holders of Acquiror Class A Common Stock receiving a per share price (based on the value of the cash, securities or in-kind consideration being

 

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delivered in respect of such Acquiror Class A Common Stock, as determined in good faith by the Board of Directors of Acquiror) that is less than the applicable Stock Price Level required in connection with any Triggering Event that has not previously occurred, then this Article IVshall terminate and no Company Earn Out Shares shall be issuable hereunder with respect to such Triggering Event(s) in connection with or following completion of the Acquiror Sale. For the avoidance of doubt, in the event of an Acquiror Sale, including where the consideration payable is other than a specified price per share, for purposes of determining whether the applicable Stock Price Level has been achieved in accordance with this Section 4.2, the price paid per share of Acquiror Class A Common Stock will be calculated on a basis that takes into account the number of Sponsor Earn Out Shares that will vest and the number of Company Earn Out Shares that will vest (i.e., the ultimate price per share payable to all holders of Common Stock will be the same price per share used to calculate the number of Sponsor Earn Out Shares and Company Earn Out Shares that vest).

Article V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as set forth in the disclosure letter delivered to Acquiror and Merger Sub by the Company on the date of this Agreement (the “Company Disclosure Letter”) (each section of which, subject to Section 12.9, qualifies the correspondingly numbered and lettered representations in this Article V), the Company represents and warrants to Acquiror and Merger Sub as follows:

Section 5.1.Company Organization. The Company has been duly incorporated and is validly existing and in good standing under the Laws of its jurisdiction of incorporation, and has the requisite corporate power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. The Governing Documents of the Company, as amended to the date of this Agreement and as previously made available by or on behalf of the Company to Acquiror, are true, correct and complete. The Company is in compliance in all material respects with the provisions of the Company’s Governing Documents. The Company is duly qualified and licensed to do business in each jurisdiction in which it is conducting its business, or in which the operation, ownership or leasing of its properties makes such qualification or license, as applicable, necessary, other than in such jurisdictions where the failure to be so licensed or qualified would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

Section 5.2.Subsidiaries.

(a)A true, correct and complete list of each Subsidiary of the Company and its jurisdiction of incorporation, formation or organization, as applicable, is set forth on Section 5.2 of the Company Disclosure Letter. Except as set forth on Section 5.2 of the Company Disclosure Letter, the Company owns, directly or indirectly, all of the outstanding Equity Interests of the Company’s Subsidiaries, free and clear of all Liens (other than Permitted Liens). Except for the Company’s Subsidiaries, the Company does not own, directly or indirectly, any ownership, equity, profits or voting interest in any Person or have any Contracts to purchase any such interest, and has not agreed and is not obligated to make nor is bound by any Contract or other written, oral or other option, warranty or undertaking of any nature, as of the date hereof or as may hereafter be in

 

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effect under which it may become obligated to make, any future investment in or capital contribution to any other Person.

(b)The Subsidiaries of the Company have been duly formed or organized and are validly existing and in good standing under the Laws of their respective jurisdictions of incorporation or organization and have the requisite power and authority to own, lease or operate all of their respective properties and assets and to conduct their respective businesses as they are now being conducted. True, correct and complete copies of the Governing Documents of the Company’s Subsidiaries, in each case, as amended to the date of this Agreement, have been previously made available to Acquiror by or on behalf of the Company. Each Subsidiary of the Company is in compliance in all material respects with the provisions of such Subsidiary’s Governing Documents. Each Subsidiary of the Company is duly qualified or licensed in each jurisdiction in which it is conducting its business, or in which the operation, ownership or leasing of its properties makes such qualification or license, as applicable, necessary, other than in such jurisdictions where the failure to so qualify would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

Section 5.3.Due Authorization.

(a)The Company has all requisite corporate power and authority (i) to execute and deliver this Agreement and the other documents to which it is a party contemplated hereby, and (ii) subject to the Company Stockholder Approvals and the approvals described in Section 5.5, to consummate the transactions contemplated hereby and thereby and to perform all of its obligations hereunder and thereunder (including the Merger). The execution and delivery of this Agreement and the other documents to which the Company is a party contemplated hereby and the consummation of the transactions contemplated hereby and thereby, including the Merger, have been duly and validly authorized and approved by the Board of Directors of the Company, and no other corporate proceeding on the part of the Company is necessary to authorize this Agreement and the other documents to which the Company is a party contemplated hereby (other than the Company Stockholder Approvals). This Agreement has been, and on or prior to the Closing, the other documents to which the Company is a party contemplated hereby will be, duly and validly executed and delivered by the Company, and this Agreement constitutes, and on or prior to the Closing, each of the other documents to which the Company is a party contemplated hereby will constitute, in each case assuming the due authorization, execution and delivery by the other parties hereto and thereto, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.

(b)On or prior to the date of this Agreement, the Board of Directors of the Company has duly adopted resolutions (i) determining that the Merger is fair to and in the best interests of the Company and its stockholders and (ii) authorizing and approving the execution, delivery and performance by the Company of this Agreement and the other documents to which the Company is a party contemplated hereby and the transactions contemplated hereby and thereby (including the Merger) and declared it advisable for the Company to enter into this Agreement and the other documents contemplated hereby and (iii) recommending the approval and adoption of this Agreement and the documents contemplated hereby, and the transactions contemplated hereby

 

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and thereby, including the Merger, by the stockholders of the Company. No other corporate action is required on the part of the Company or any of its stockholders to enter into this Agreement or the documents to which the Company is a party contemplated hereby or to approve the Merger.

Section 5.4.No Conflict. Subject to the receipt of the consents, approvals, authorizations and other requirements set forth in Section 5.5 and except as set forth on Section 5.4 of the Company Disclosure Letter, the execution and delivery by the Company of this Agreement and the documents to which the Company is a party contemplated hereby and the consummation of the transactions contemplated hereby and thereby do not and will not (a) violate or conflict with any provision of, or result in the breach of, or default under the Governing Documents of the Company or any of its Subsidiaries, (b) violate or conflict with any provision of, or result in the breach of, or default under any Law or Governmental Order applicable to the Company or any of its Subsidiaries, (c) violate or conflict with any provision of, or result in the breach of, result in the loss of any right or benefit, or cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any Material Contract to which the Company or any of the Company’s Subsidiaries is a party or by which the Company or any of the Company’s Subsidiaries may be bound, or terminate or result in the termination of any such foregoing Material Contract or (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, except, in the case of clauses (b) through (d), to the extent that any such violations, conflicts, breaches, defaults or other occurrences would not, individually or in the aggregate, reasonably be expected to be material to the business of the Company and its Subsidiaries, taken as a whole, or have a Company Material Adverse Effect.

Section 5.5.Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of Acquiror contained in this Agreement, no consent, waiver, approval or authorization of, or designation, declaration or filing with, or notification to, any Governmental Authority (each, a “Governmental Authorization”) is required on the part of the Company or any of its Subsidiaries with respect to the Company’s execution or delivery of this Agreement or the documents to which the Company is a party contemplated hereby or the consummation of the transactions contemplated hereby and thereby, except for (a) applicable requirements of the HSR Act, (b) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, or have a material adverse effect on the ability of the Company to perform any obligation of the Company under this Agreement or the documents to which the Company is a party contemplated hereby or the consummation of the transactions contemplated hereby and thereby and (c) the filing of the Merger Certificate in accordance with the DGCL.

Section 5.6.Capitalization of the Company.

(a)As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 31,000,000 shares of Company Common Stock, of which 7,962,604 are issued and outstanding, (ii) 400,000 shares of Company Series Seed Preferred Stock, all of which are issued and outstanding and are convertible into Company Common Stock on a one-to-one basis, (iii) 515,779 shares of Company Series Seed-1 Preferred Stock, all of which are issued and outstanding and are convertible into Company Common Stock on a one-to-one basis, (iv) 5,706,349 shares of Company Series A‑1 Preferred Stock, all of which are issued and outstanding and are convertible into Company Common Stock on a one-to-one basis, (v) 2,574,478 shares of Company Series A‑2 Preferred Stock, all of which are issued and outstanding and are convertible into Company Common Stock on a one-to-one basis, (vi) 2,713,324 shares of Company Series A‑3 Preferred Stock, of which 2,621,569 are issued and outstanding and are convertible into Company Common Stock on a one-to-one basis,

 

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and (vii) 5,131,673 shares of Company Series B Preferred Stock, of which 4,205,059 are issued and outstanding and are convertible into Company Common Stock on a one-to-one basis. The foregoing represents all of the issued and outstanding shares of capital stock of the Company as of the date of this Agreement. All of the issued and outstanding shares of capital stock of the Company (w) have been duly authorized and validly issued and are fully paid and non-assessable, (x) have been offered, sold and issued in compliance with applicable Law, including Securities Laws, and all requirements set forth in (A) the Governing Documents of the Company and (B) any other applicable Contracts governing the issuance of such Equity Interests, (y) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or similar right under any provision of any applicable Law, the Governing Documents of the Company or any Contract to which the Company is a party or otherwise bound and (z) are free and clear of any Liens (other than Permitted Liens).

(b)As of the date of this Agreement, Company Options to purchase 3,095,368 shares of Company Common Stock are outstanding, Company Restricted Stock Awards representing 316,272 unvested shares of Company Common Stock are outstanding, and Company Restricted Stock Unit awards representing a right to receive 1,850,285 shares of Company Common Stock are outstanding. The Company has provided Acquiror (i) true, correct and complete copies of all outstanding Company Awards and (ii) true and correct details regarding such Company Awards, including, for each Company Award, to the extent applicable: (i) the holder’s name; (ii) the grant date; (iii) the type of Company Award and the number of shares of Company Common Stock subject to such Company Award (including at the time of original grant and currently outstanding as of the date of this Agreement, the amount unvested, and the amount vested); (iv) the vesting schedule; (v) if applicable, the exercise price; and (vi) whether any Company Option has been exercised prior to vesting pursuant to an “early-exercise feature.” To the Company’s Knowledge, valid elections under Section 83(b) of the Code have been timely made with respect to any shares of Company Common Stock issued in respect of any Company Option that has been exercised prior to vesting pursuant to an “early-exercise feature” and any Company Restricted Stock Award. Each Company Award was validly issued and properly approved by the Board of Directors of the Company (or appropriate committee thereof). All Company Awards have been granted in accordance with the terms of the Company Incentive Plan. Each Company Option has been granted with an exercise price that is no less than the fair market value of the underlying shares of Company Common Stock on the date of grant, as determined in accordance with Section 409A of the Code or Section 422 of the Code, if applicable. Each Company Option is intended to either qualify as an “incentive stock option” under Section 422 of the Code or to otherwise be exempt under Section 409A of the Code. The Company has made available to Acquiror true, correct and complete copies of (A) the Company Incentive Plan, (B) the forms of standard award agreement under the Company Incentive Plan and (C) copies of any award agreements that materially deviate from such forms. The treatment of Company Awards under this Agreement does not violate the terms of the Company Incentive Plan or any Contract governing the terms of such awards.

 

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(c)As of the date of this Agreement, Company Warrants to purchase 1,001,231 shares of Company Common Stock and 32,405 Company Series A-3 Preferred Stock are outstanding. A true, correct and complete copy of each Company Warrant has been made available to Acquiror. Except for the Company Awards, the Company Warrants and the Company Convertible Notes, the Company has not granted any Equity Interests of the Company, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional Equity Interests, the sale of Equity Interests, or for the repurchase or redemption of Equity Interests of the Company or the value of which is determined by reference to Equity Interests of the Company, and there are no voting trusts, proxies or agreements of any kind which may obligate the Company to issue, purchase, register for sale, redeem or otherwise acquire any Equity Interests of the Company.

(d)Section 5.6(d) of the Company Disclosure Letter sets forth, as of the date of this Agreement, the following information with respect to the Company Convertible Notes: (i) the name of each holder of any of the Company Convertible Notes; (ii) the aggregate amount of principal and interest outstanding under each of the Company Convertible Notes as of the date of this Agreement; (iii) the interest rate applicable to each of the Company Convertible Notes; and (iv) the maturity date of each of the Company Convertible Notes. The Company has made available to Acquiror true, correct and complete copies of the Company Convertible Notes. All shares of Company Common Stock subject to issuance pursuant to the Company Convertible Notes, upon issuance on the terms and conditions specified therein, will be duly authorized, validly issued, fully paid and nonassessable.

Section 5.7.Capitalization of Subsidiaries.

(a)The outstanding shares of Equity Interests of each of the Company’s Subsidiaries (i) have been duly authorized and validly issued and are, to the extent applicable, fully paid and non-assessable, (ii) have been offered, sold and issued in compliance with applicable Law, including Securities Laws, and all requirements set forth in (A) the Governing Documents of each such Subsidiary, and (B) any other applicable Contracts governing the issuance of such Equity Interests, (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or similar right under any provision of any applicable Law, the Governing Documents of each such Subsidiary or any Contract to which each such Subsidiary is a party or otherwise bound and (iv) except as set forth on Section 5.7 of the Company Disclosure Letter, are free and clear of any Liens (other than Permitted Liens).

(b)There are no outstanding Equity Interests of any of the Company’s Subsidiaries, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional Equity Interests, the sale of Equity Interests, or for the repurchase or redemption of Equity Interests of such Subsidiaries or the value of which is determined by reference to Equity Interests of the Subsidiaries, and there are no voting trusts, proxies or agreements of any kind which may obligate any Subsidiary of the Company to issue, purchase, register for sale, redeem or otherwise acquire any of its Equity Interests.

 

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Section 5.8.Financial Statements.

(a)The Company has made available to Acquiror true, correct and complete copies of (a) the audited consolidated balance sheet and statements of net loss, comprehensive loss, temporary equity and stockholders’ deficit, and cash flows of the Company and its Subsidiaries as of and for the years ended December 31, 2020 and December 31, 2019 (the “Audited Financial Statements”) and (b) the unaudited consolidated balance sheet and statements of net loss, comprehensive loss, temporary equity and stockholders’ deficit, and cash flows of the Company and its Subsidiaries for the three (3) months ended March 31, 2021 (the “Unaudited Financial Statements”).

(b)The Company Financial Statements and, when delivered pursuant to Section 7.3 (if applicable), the Additional Required Financial Statements, (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in stockholders’ equity (with respect to the Audited Financial Statements only) and their consolidated cash flows for the respective periods then ended (subject, in the case of the Unaudited Financial Statements and any unaudited Additional Required Financial Statements, to normal year-end adjustments that are not material in amount or kind and the absence of footnotes), (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and, in the case of the Unaudited Financial Statements and any unaudited Additional Required Financial Statements, the absence of footnotes or the inclusion of limited footnotes), (iii) were prepared from, and are in accordance with, in all material respects, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of any audited financial statements, were audited in accordance with the standards of the Public Company Accounting Oversight Board and contain an unqualified report of the Company’s auditor and (v) when delivered after the date hereof by the Company for inclusion in the Registration Statement and the Proxy Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant in effect as of the respective dates thereof.

(c)The Company has established and maintains a system of “internal controls over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) sufficient to provide reasonable assurances: (i) that transactions, receipts and expenditures of the Company and its Subsidiaries are being executed and made only in accordance with appropriate authorizations of management of the Company, (ii) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and its Subsidiaries and (iv) that accounts, notes and other receivables and inventory are recorded accurately.

(d)Except as set forth in Section 5.8(d) of the Company Disclosure Letter, the Company has not identified or been made aware of, and has not received from any independent auditor of the Company any written notification of, (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company, (ii) any fraud,

 

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whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or (iii) any written claim or allegation regarding any of the foregoing.

(e)Except as set forth on Section 5.8(e) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or any of its Subsidiaries to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company or any of its Subsidiaries.

Section 5.9.No Undisclosed Liabilities. Except as set forth on Section 5.9 of the Company Disclosure Letter, there is no other liability, debt (including Indebtedness) or obligation of, or claim or judgment against, the Company or any of the Company’s Subsidiaries (whether direct or indirect, absolute or contingent, accrued or unaccrued, known or unknown, liquidated or unliquidated, or due or to become due), except for liabilities, debts (including Indebtedness), obligations, claims or judgments (a) reflected or reserved for on the Company Financial Statements or expressly disclosed in the notes thereto, (b) that have arisen since the date of the most recent balance sheet included in the Company Financial Statements in the ordinary course of business, consistent with past practice, of the Company and its Subsidiaries, (c) that have arisen in connection with the authorization, negotiation, execution or performance of this Agreement or the transactions contemplated hereby, and will be disclosed or otherwise taken into account in the Company Transaction Expenses or (d) which would not be, or would not reasonably be expected to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries, taken as a whole.

Section 5.10.Litigation and Proceedings. Except as set forth on Section 5.10 of the Company Disclosure Letter, (a) there are no pending or, to the Knowledge of the Company, threatened Actions, or other proceedings at law or in equity (collectively, “Legal Proceedings”), against the Company or any of the Company’s Subsidiaries or their respective properties or assets or, to the Knowledge of the Company, any of the directors, managers or officers of the Company or any of its Subsidiaries with regard to their actions as such, (b) other than with respect to audits, examinations or investigations in the ordinary course of business conducted by a Governmental Authority pursuant to a Material Contract, there is no pending or, to the Knowledge of the Company, threatened audit, examination or investigation by any Governmental Authority against the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, or, to the Knowledge of the Company, any of the directors, managers or officers of the Company or any of its Subsidiaries with regard to their actions as such, (c) there is no pending or threatened Legal Proceeding by the Company or any of the Company’s Subsidiaries against any third party and (d) there is no outstanding Governmental Order imposed or, to the Knowledge of the Company, threatened in writing to be imposed upon the Company or any of the Company’s Subsidiaries nor are any properties or assets of the Company or any of the Company’s Subsidiaries’ respective businesses bound or subject to any Governmental Order, except, in each case of clauses (a)-(d), as would not reasonably be expected to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries, taken as a whole.

 

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Section 5.11.Legal Compliance.

(a)Each of the Company and its Subsidiaries is, and for the prior three (3) years has been, in compliance with all applicable Laws in all material respects.

(b)The Company and its Subsidiaries maintain a program of policies, procedures and internal controls reasonably designed and implemented to ensure compliance with applicable Laws.

(c)For the past three (3) years, neither the Company nor any of its Subsidiaries has received any written notice of, or been charged with, the violation of any Laws, except where such violation has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries, taken as a whole.

Section 5.12.Contracts; No Defaults.

(a)Section 5.12(a) of the Company Disclosure Letter contains a listing of all Contracts described in the following clauses (i) through (xiv) to which, as of the date of this Agreement, the Company or any of the Company’s Subsidiaries is a party or by which they or their assets or properties are bound, other than a Company Benefit Plan (such Contracts as are required to be set forth on Section 5.12(a) of the Company Disclosure Letter, the “Material Contracts”):

(i)other than as would be responsive to Section 5.12(a)(ix) and purchase orders, invoices or statements of work entered into in the ordinary course of business consistent with past practice, any Contract or purchase commitment reasonably expected to result in a future payment or payments to or by the Company or any of its Subsidiaries in excess of two hundred and fifty thousand Dollars ($250,000) in any twelve (12) month period;

(ii)any Contract with any of the Top Customers (other than purchase orders, invoices or statements of work entered into in the ordinary course of business consistent with past practice);

(iii)any Contract with any of the Top Suppliers (other than purchase orders, invoices or statements of work entered into in the ordinary course of business consistent with past practice);

(iv)any note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract for money borrowed by the Company or any of the Company’s Subsidiaries, including any agreement or commitment for future loans, credit or financing, in each case, in excess of five hundred thousand Dollars ($500,000);

(v)any Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries in the last five (5) years, in each case, involving payments in excess of five hundred thousand Dollars ($500,000) other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;

 

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(vi)any lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property that involves aggregate payments in excess of two hundred and fifty thousand Dollars ($250,000) in any calendar year;

(vii)any Contract involving the formation of a joint venture, partnership, or limited liability company (excluding in the case of a partnership or limited liability company, any wholly owned Subsidiary of the Company);

(viii)any Contract (other than employment agreements or offer letters, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Governing Documents) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or any of the Company’s Subsidiaries (other than the Company or any of the Company’s Subsidiaries), the officers, directors, members, partners and managers (or equivalents) of the Company or any of the Company’s Subsidiaries or Affiliates, the members or equityholders of the Company or any of the Company’s Subsidiaries or Affiliates, any employee of the Company or any of the Company’s Subsidiaries or Affiliates, or a member of the immediate family of the foregoing Persons, on the other hand (collectively, “Affiliate Agreements”);

(ix)any Contract with any employee or consultant of the Company or any of the Company’s Subsidiaries that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the transactions contemplated hereby;

(x)any Contract with any employee of the Company or any of its Subsidiaries that provides for annual base salary in excess of two hundred thousand Dollars ($200,000);

(xi)any Contract with any independent contractor or consultant who currently provides services to the Company or any of its Subsidiaries with a consulting fee greater than one hundred thousand Dollars ($100,000) per year;

(xii)any Contract, other than non-disclosure agreements, containing covenants of the Company or any of the Company’s Subsidiaries (A) prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to engage in or compete with any Person in any line of business in any material respect or (B) prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business with any Person in any geographic area in any material respect;

(xiii)any collective bargaining (or similar) agreement or Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any labor union or other body representing employees of the Company or any of the Company’s Subsidiaries, on the other hand;

(xiv)any Contract (including license agreements, coexistence agreements, settlement agreements, and agreements with applicable covenants not to sue)

 

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pursuant to which the Company or any of the Company’s Subsidiaries (A) grants to a third Person any material rights to use or register or otherwise practice or exploit, or any covenant not to sue for infringement or misappropriation of, any Company Owned IP (except for (i) Contracts granting nonexclusive rights to Company Owned IP that are substantially similar in all material respects to the Company’s standard customer agreement, (ii) non-disclosure agreements entered into the ordinary course of business consistent with past practice, (iii) non-exclusive licenses granted to Company Service Providers for the sole purpose of providing services to the Company, (iv) non-exclusive rights to feedback granted by the Company in the ordinary course of business consistent with past practice, and (v) non-exclusive trademark licenses that are incidental to such Contract) or (B) is granted by a third Person any material rights to use or otherwise practice or exploit, or any covenant not to sue for infringement or misappropriation of, any Intellectual Property (other than (i) Contracts granting nonexclusive rights to use commercially available off-the-shelf software having a replacement cost or annual license fee of less than twenty-five thousand Dollars ($25,000) for all such related Contracts, (ii) Open Source Licenses, (iii) agreements between the Company and Company Service Providers for the assignment or license of Intellectual Property rights entered into on the Company’s standard form agreement regarding inventions, confidentiality and other matters (or a substantially similar form), (iv) non-disclosure agreements entered into the ordinary course of business consistent with past practice, (v) non-exclusive licenses granted by customers in the ordinary course of business consistent with past practice, (vi) non-exclusive rights to feedback granted by third parties in the ordinary course of business consistent with past practice, and (vii) non-exclusive trademark licenses that are incidental to such Contract);

(xv)any Contract that (A) grants to any third Person any “most favored nation rights” or (B) grants to any third Person price guarantees for a period greater than one (1) year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of one million two hundred and fifty thousand Dollars ($1,250,000) in any calendar year;

(xvi)any Contract granting to any Person (other than the Company or its wholly owned Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase or acquire Equity Interests in the Company or any of the Company’s Subsidiaries; and

(xvii)any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xvi) of this Section 5.12(a).

(b)True, correct and complete copies of the Contracts listed on Section 5.12(a) of the Company Disclosure Letter have previously been made available to Acquiror or its Representatives, together with all amendments thereto. Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, all of the Material Contracts are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the Subsidiary of the Company party thereto and, to the Knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not, individually

 

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or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under such Material Contracts, and neither the Company, the Company’s Subsidiaries, nor, to the Knowledge of the Company, any other party thereto is in breach of or default under any such Material Contract, (y) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral claim or written or, to the Knowledge of the Company, oral notice of termination or breach of or default under any such Material Contract (which claim or notice has not been rescinded), and (z) to the Knowledge of the Company, no event has occurred which, individually or together with other events, would reasonably be expected to result in a breach of or a default under any such Material Contract by the Company or its Subsidiaries or, to the Knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both).

Section 5.13.Company Benefit Plans.

(a)Section 5.13(a) of the Company Disclosure Letter sets forth a true, correct and complete list, as of the date hereof, of each material Company Benefit Plan (other than (1) “at-will” offer letters and employment agreements that are substantially in the form of an offer letter or employment agreement (as applicable) provided to Acquiror and that do not contain severance, change of control and/or prior notice provisions that may be applicable on termination of employment and/or (2) individual consulting agreements that can be terminated on thirty (30) days’ notice or less and without any termination fee). For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or any other plan, policy, program or agreement (including any employment, individual consulting, bonus, incentive or deferred compensation, employee loan, note or pledge agreement, equity or equity-based compensation, retention, retirement, supplemental retirement, welfare benefit, fringe benefit, severance or other post-termination, vacation or other leave, change in control or similar plan, policy, program, agreement or arrangement) providing compensation or other benefits to any current or former director, officer, individual consultant, worker or employee of the Company or any of the Company’s Subsidiaries, which are maintained, sponsored or contributed to (or required to be contributed to) by the Company or any of the Company’s Subsidiaries, or to which the Company or any of the Company’s Subsidiaries is a party or has or may have any liability, but excluding in each case any statutory plan, program or arrangement that is required under applicable Law and maintained solely by any Governmental Authority. With respect to each Company Benefit Plan listed on Section 5.13(a) of the Company Disclosure Letter, the Company has made available to Acquiror, to the extent applicable, true, correct and complete copies of (i) the plan document (or, if not written, a written summary of its material terms) and any amendments thereto; (ii) any trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (iii) the most recent summary plan description and all summaries of material modifications thereto, (iv) the three (3) most recent annual reports (Form 5500 series) filed with the IRS with respect to such Company Benefit Plan, (v) actuarial reports for the three (3) most recently completed plan years, (vi) the most recent determination, advisory or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan and any pending request for such a determination letter, (vii) nondiscrimination coverage and other annual testing results for the three

 

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(3) most recently completed plan years and (viii) any material non-routine correspondence to or from any Governmental Authority from inception.

(b)Except as set forth on Section 5.13(b) of the Company Disclosure Letter, (i) each Company Benefit Plan has been operated and administered in compliance in all material respects with its terms and all applicable Laws, including ERISA and the Code, (ii) in all material respects, all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and, if not yet due, all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company Financial Statements to the extent required by GAAP and (iii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code is so qualified and has received a currently effective favorable determination letter from the IRS as to its qualification or may rely upon a favorable advisory or opinion letter for a prototype plan and, to the Knowledge of the Company, no fact or event has occurred that would reasonably be expected to (A) adversely affect the qualified status of any such Company Benefit Plan or (B) result in a penalty or other liability to the Company or any of its Subsidiaries if discovered during an IRS audit or investigation.

(c)No Company Benefit Plan is, and none of the Company, any of its Subsidiaries, or any ERISA Affiliate has ever sponsored, maintained, administered or contributed to, or had any actual or contingent liability with respect to, a plan that is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 or 430 of the Code (including a multiemployer plan (within the meaning of Section 4001(a)(3) of ERISA)). No Company Benefit Plan is, and neither the Company nor any of its Subsidiaries has any actual or contingent liability with respect to, a multiemployer plan (within the meaning of Section 3(37) of ERISA or Section 413(c) of the Code) or a multiple employer welfare arrangement (within the meaning of Section 3(40)(A) of ERISA).

(d)With respect to each Company Benefit Plan, no material Actions (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of the Company, threatened by, on behalf of, against or otherwise involving any such Company Benefit Plan or any trusts relating thereto.

(e)Other than coverage mandated by applicable Law, no Company Benefit Plan provides post-termination or retiree health or welfare benefits to any individual for any reason, and neither the Company nor any of its Subsidiaries has any actual or contingent liability to provide post-termination or retiree health or welfare benefits to any individual or has ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. Neither the Company nor any of its Subsidiaries has any liability on account of any violation of COBRA.

(f)Each Company Benefit Plan that is subject to Section 409A of the Code has been administered, operated and maintained in all respects according to the requirements of Section 409A of the Code and all applicable guidance thereunder. No Person is entitled to receive any additional payments (including any “gross up” or similar payment) from the Company or any of its Subsidiaries as a result of the imposition of any Tax, including under Section 409A of the Code.

 

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(g)No transaction prohibited by Section 406 of ERISA or Section 4975 of the Code has occurred that involves any Company Benefit Plan that could result in any liability to the Company, any of its Subsidiaries, or any employee thereof. No fiduciary providing services to any of the Company or any of its Subsidiaries as an employee, director or service provider (within the meaning of Section 3(21) of ERISA) of any Company Benefit Plan subject to Part 4 of Subtitle B of Title I of ERISA has committed a breach of fiduciary duty. The Company and its Subsidiaries have not, nor to the Knowledge of the Company, has any other Person, engaged in any transaction with respect to any Company Benefit Plan that could reasonably be expected to subject the Company, any of its Subsidiaries, or any employee thereof to any Tax, penalty (civil or otherwise) or other liability under ERISA, the Code or other applicable Law. The Company and its Subsidiaries do not have any liability under Chapter 43 of the Code, and nothing has occurred that could reasonably be expected to subject the Company or any of its Subsidiaries to any such liability.

(h)Except as set forth on Section 5.13(h) of the Company Disclosure Letter, the consummation of the transactions contemplated hereby will not, either alone or in combination with another event (such as termination following the consummation of the transactions contemplated hereby), (i) entitle any current or former employee, officer or other service provider of the Company or any Subsidiary of the Company to any severance payment, any cancellation of indebtedness, or any other compensation or benefits, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits (including Company Awards) due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company, (iii) result in any increase in benefits payable under any Company Benefit Plan or (iv) result in any loan forgiveness with respect to any current or former employee, officer or other service provider of the Company or any Subsidiary of the Company. The consummation of the transactions contemplated hereby will not, either alone or in combination with another event, result in any “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan provides for a Tax gross-up, make whole or similar payment with respect to the Taxes imposed under Section 4999 of the Code.

(i)No amount or benefit that could be, or has been, received (whether in cash or property or the vesting of property or the cancellation of indebtedness) by any current or former employee, officer or director of the Company or any Subsidiary of the Company who is a “disqualified individual” within the meaning of Section 280G of the Code could be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) as a result of the consummation of the transactions contemplated by this Agreement. No Company Benefit Plan provides for a Tax gross-up, make whole or similar payment with respect to the Taxes imposed under Section 4999 of the Code.

(j)No Company Benefit Plan provides compensation or benefits to any employee or service provider of the Company or its Subsidiaries who resides or performs services primarily outside of the United States.

Section 5.14.Labor Relations; Employees.

(a)Section 5.14(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each current officer, director, employee and other service provider of the

 

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Company or its Subsidiaries as of the date of this Agreement, and includes with respect to each such person the following information, as applicable: (i) name, (ii) title or position, (iii) hire date or service inception date, (iv) classification as exempt or non-exempt for wage payment purposes, (v) classification by the Company as an employee, independent contractor, consultant, or director, (vi) current annual base salary or hourly wage rate, as applicable, (vii) any other compensation for which the officer, director, employee or service provider is eligible (including bonus payments, deferred compensation, commission arrangements or other compensation), (viii) bonuses and commissions paid (or if not yet paid, earned) for fiscal year 2020, (ix) employing entity, (x) work location (city, state), (xi) leave status (including the date leave began and anticipated return to work date), and (xii) visa status, if applicable.

(b)(i) Neither the Company nor any of its Subsidiaries is or has ever been a party to or bound by any collective bargaining agreement or other labor-related agreement or arrangement with any labor union or other employee representative body, (ii) no such collective bargaining agreement or other labor-related agreement or arrangement is being negotiated by the Company or any of the Company’s Subsidiaries, (iii) no employees of the Company or any of its Subsidiaries are or have ever been represented by any labor union or other employee representative body with respect to their employment with the Company or its Subsidiaries and (iv) no labor union or any other employee representative body, to the Knowledge of the Company, is requesting or has ever requested or sought to represent any of the employees of the Company or its Subsidiaries with respect to their employment with the Company or its Subsidiaries. In the past three (3) years, there has been no actual or, to the Knowledge of the Company, threatened unfair labor practice charge, material arbitration, strike, slowdown, work stoppage, lockout, or other material labor dispute against or affecting the Company or any Subsidiary of the Company.

(c)Each of the Company and its Subsidiaries are, and have been for the past three (3) years, in compliance in all material respects with all applicable Laws respecting labor and employment including, but not limited to, all Laws respecting terms and conditions of employment, occupational, health and safety, wages and hours, holiday pay and the calculation of holiday pay, working time, employee classification (with respect to both exempt vs. non-exempt status and employee vs. independent contractor and worker status), child labor, work authorization, employment discrimination, disability rights or benefits, equal opportunity, equal pay, plant closures and layoffs, affirmative action, reasonable accommodations, workers’ compensation, labor relations, employee leave issues (including the Families First Coronavirus Response Act) and unemployment insurance.

(d)The Company and its Subsidiaries are not delinquent in any material payments to any employees or former employees for any services or amounts required to be reimbursed or otherwise paid.

(e)In the past three (3) years, the Company and its Subsidiaries have not received (i) notice of any unfair labor practice charge or material complaint before the National Labor Relations Board or any other Governmental Authority against them, (ii) notice of any complaints, grievances or arbitrations arising out of any collective bargaining agreement, (iii) notice of any charge or complaint with respect to them before the Equal Employment Opportunity Commission or any other Governmental Authority responsible for the prevention of unlawful employment practices, (iv) written notice (including notice via electronic means) of the

 

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intent of any Governmental Authority responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration or occupational safety and health Laws to conduct an investigation with respect to them or written notice (including notice via electronic means) that such investigation is in progress or (v) written notice (including notice via electronic means) of any Action in any forum by or on behalf of any present or former employee of such entities, any applicant for employment or classes of the foregoing alleging breach of any express or implied Contract of employment, any applicable Law governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with the employment relationship, and with respect to each of (i) through (v) herein, no such matters are pending or, to the Knowledge of the Company, threatened.

(f)No Key Employee or other employee of the Company or any of the Company’s Subsidiaries at the level of Vice President (or the equivalent) or above (i) has given notice to the Company or its Subsidiaries of an intention to terminate his or her employment, or (ii) to the Knowledge of the Company, intends to terminate his or her employment.

(g)The Company and its Subsidiaries are not and have not been (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or any other applicable Law requiring affirmative action or other employment related actions for government contractors or subcontractors, or (iii) otherwise required to maintain an affirmative action plan.

(h)To the Knowledge of the Company, no current or former employee, worker or independent contractor of the Company or any of the Company’s Subsidiaries is in violation of (i) any restrictive covenant, nondisclosure obligation or fiduciary duty to the Company or any of the Company’s Subsidiaries or (ii) any restrictive covenant or nondisclosure obligation to a former employer or engager of any such individual relating to (A) the right of any such individual to work for or provide services to the Company or any of the Company’s Subsidiaries or (B) the knowledge or use of Trade Secrets or proprietary information.

(i)Neither the Company nor any of the Company’s Subsidiaries is party to a settlement agreement with a current or former officer, employee or independent contractor of the Company or any of the Company’s Subsidiaries that involves allegations relating to sexual harassment, sexual misconduct or discrimination by either (i) an officer of the Company or any of the Company’s Subsidiaries or (ii) an employee of the Company or any of the Company’s Subsidiaries. To the Knowledge of the Company, in the last three (3) years, no allegations of sexual harassment, sexual misconduct or discrimination have been made against (x) any officer of the Company or any of the Company’s Subsidiaries or (y) any employee of the Company or any of the Company’s Subsidiaries.

(j)In the past three (3) years, the Company and its Subsidiaries have not engaged in layoffs, furloughs or employment terminations sufficient to trigger application of the Workers’ Adjustment and Retraining Notification Act of 1988 or any similar state or local law relating to group terminations of employment (collectively, “WARN”). Except as set forth on Section 5.14(j) of the Company Disclosure Letter, the Company and its Subsidiaries have not engaged in layoffs, furloughs or employment terminations (other than for cause) or effected any broad-based salary or other compensation or benefits reductions, in each case, whether temporary

 

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or permanent, since January 1, 2020 through the date hereof. The Company, taken as a whole with its Subsidiaries, has sufficient employees to operate the business of the Company and its Subsidiaries as currently conducted.

(k)All employees of the Company and its Subsidiaries, and to the Knowledge of the Company, all contractors performing services for the Company and its Subsidiaries, are legally authorized to work in the United States, and the Company has obtained and maintained all form I-9, visa, and other appropriate documentation related thereto in accordance with applicable Laws.

Section 5.15.Taxes.

(a)All income and other material Tax Returns required to be filed by or with respect to the Company and each of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects and all material Taxes due and payable by or on behalf of the Company and its Subsidiaries (whether or not shown on any Tax Return) have been paid.

(b)The Company and each of its Subsidiaries has withheld from amounts owing to any employee, creditor or other Person all material Taxes required by Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.

(c)There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.

(d)No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted or assessed by any Governmental Authority against the Company or any of its Subsidiaries, except for deficiencies that have been satisfied, settled, withdrawn or otherwise resolved.

(e)There is no ongoing or pending material Tax audit or other examination of the Company or any of its Subsidiaries, and there are no waivers, extensions or requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.

(f)Neither the Company nor any of its Subsidiaries has made a request for an advance tax ruling, a request for technical advice, a request for a change of any method of accounting or any similar request that is in progress or pending with any Governmental Authority with respect to any Taxes.

(g)The Company and its Subsidiaries are in material compliance with all escheat and unclaimed property laws. Neither the Company nor any of its Subsidiaries has incurred any material Taxes resulting from any action taken outside of the ordinary course of business since the date of the most recent balance sheet included in the Company Financial Statements.

 

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(h)The Company and its Subsidiaries have each used at all times during their existence the accrual method of accounting for income Tax purposes.

(i)Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax receivable, sharing, allocation or similar agreement (other than Ordinary Course Agreements).

(j)Neither the Company nor any of its Subsidiaries has been a party to any transaction intended to qualify under Section 355 of the Code (or under so much of Section 356 of the Code as relates to Section 355 of the Code) in the two (2) years prior to the date of this Agreement.

(k)Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law or as a transferee or successor or by Contract (other than customary commercial Contracts entered into in the ordinary course of business not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes.

(l)No written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to Tax in that jurisdiction.

(m)Neither the Company nor any of its Subsidiaries has, or has ever had, a permanent establishment in any country other than the country of its organization, or is subject to income Tax in a jurisdiction outside the country of its organization.

(n)Neither the Company nor any of its Subsidiaries has participated in a “reportable transaction” within the meaning of Treasury Regulation 1.6011-4(b) (or any corresponding or similar provision of state, local or non-U.S. Law).

(o)Except as set forth in Section 5.15(o) of the Company Disclosure Letter, no Subsidiary of the Company that is incorporated in a jurisdiction outside of the United States (i) is an “expatriated entity” or “surrogate foreign corporation” within the meaning of Section 7874 of the Code or (ii) has received written notice from the IRS claiming that it may be subject to U.S. federal income Tax as a result of being engaged in a trade or business within the United States within the meaning of Section 864(b) of the Code or having a permanent establishment in the United States, which notice or claim has not since been withdrawn. Neither the Company nor any of its Subsidiaries has made an election under Section 965(h) of the Code or any corresponding or similar provision of state, local or foreign Law.

(p)Neither the Company nor any of its Subsidiaries will be required to include any material amount in taxable income, exclude any material item of deduction or loss from taxable income, or make any adjustment under Section 481 of the Code (or any similar provision of state, local or foreign Law) for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) installment sale, excess loss account or deferred intercompany transaction described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Law) or open transaction disposition made prior to the Closing, (ii) prepaid

 

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amount received or deferred revenue realized, accrued, received or recognized prior to the Closing, (iii) change in method of accounting for a taxable period ending on or prior to the Closing Date and to the Knowledge of the Company, the IRS has not proposed any such adjustment or change in accounting method, (iv) any agreement entered into by or on behalf of the Company or any of its Subsidiaries with any Governmental Authority, including a “closing agreement” described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) executed prior to the Closing, (v) any “Subpart F income” under Section 951 of the Code as a result of any investment made or transaction closed on or prior to the Closing Date, (vi) “global intangible low-taxed income” within the meaning of Section 951A of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) of Company or any of its Subsidiaries attributable to a taxable period (or portion thereof) ending on or prior to the Closing Date, (vii) any gain recognition agreement under Section 367 of the Code or (viii) by reason of Section 965(a) of the Code or election pursuant to Section 965(h) of the Code (or any similar provision of state, local or foreign Law).

(q)No Company Subsidiary is, or has ever been a “passive foreign investment company” within the meaning of Section 1297(a) of the Code.

(r)Neither the Company nor any of its Subsidiaries has deferred the employer’s share of any “applicable employment taxes” under Section 2302 of the CARES Act, failed to properly comply in all material respects with and duly account for all credits received under Sections 7001 through 7005 of the FFCRA and Section 2301 of the CARES Act, or sought, or intends to seek, a covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)).

(s)Section 5.15(s) of the Company Disclosure Letter lists the U.S. federal and state income tax classification of the Company and each of its Subsidiaries and, except as set forth in Section 5.15(s) of the Company Disclosure Letter, such classification has not changed since the formation of each such entity.

(t)Neither the Company nor any of its Subsidiaries has taken or agreed to take any action, or has any Knowledge of any fact, agreement, plan or other circumstance, that could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

(u)The representations and warranties set forth in Section 5.13 and this Section 5.15 shall constitute the sole and exclusive representations and warranties made by the Company with respect to Taxes.

Section 5.16.Brokers’ Fees. Except as set forth on Section 5.16 of the Company Disclosure Letter, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated hereby based upon arrangements made by the Company, any of the Company’s Subsidiaries’ or any of their respective Affiliates for which Acquiror, the Company or any of the Company’s Subsidiaries has any obligation.

 

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Section 5.17.Insurance. The Company and its Subsidiaries are insured with reputable insurers against such risks and in such amounts as the management of the Company reasonably has determined to be prudent and consistent with industry practice, and all of the Company’s material insurance policies are in full force and effect, all premiums due have been paid, and no notice of cancellation or termination has been received by the Company or any of the Company’s Subsidiaries with respect to any such policy. Except as disclosed on Section 5.17 of the Company Disclosure Letter, no insurer has denied or disputed coverage of any material claim under any of the Company’s or its Subsidiaries’ insurance policies during the last twelve (12) months. True, correct and complete copies of all material insurance policies of the Company and its Subsidiaries as in effect as of the date hereof have been made available to Acquiror.

Section 5.18.Licenses. The Company and its Subsidiaries have obtained, and maintain, all Licenses required to permit the Company and its Subsidiaries to own, operate, use and maintain their assets in the manner in which they are now operated and maintained and to conduct the business of the Company and its Subsidiaries as currently conducted, except as would not, individually or in the aggregate, have or be reasonably expected to have a Company Material Adverse Effect. Each material License held by the Company or any of the Company’s Subsidiaries is valid, binding and in full force and effect, and each of the Company and its Subsidiaries is in compliance, in all material respects, with all such material Licenses. Neither the Company nor any of its Subsidiaries (a) is or has been in default or violation in any material respect (and no event has occurred which, with notice or the lapse of time or both, would constitute a material default or violation) of any term, condition or provision of any material License to which it is a party, (b) is the subject of any pending or threatened in writing (or to the Knowledge of the Company, threatened orally) Action by a Governmental Authority seeking the cancellation, revocation, suspension, termination, modification, or impairment of any material License; or (c) has received any written notice that any Governmental Authority that has issued any material License intends to cancel, terminate, revoke, suspend, modify, impair or not renew any such material License, except as disclosed in Section 5.4 of the Company Disclosure Letter. Section 5.18 of the Company Disclosure Letter sets forth a true, correct and complete list of all material Licenses held by the Company and its Subsidiaries.

Section 5.19.Equipment and Other Tangible Property. Except as set forth on Section 5.19 of the Company Disclosure Letter, the Company or one of its Subsidiaries owns and has good title to, and has the legal and beneficial ownership of or a valid leasehold interest in or right to use by license or otherwise, all machinery, equipment and other tangible property reflected on the books of the Company and its Subsidiaries as owned, leased or licensed by the Company or one of its Subsidiaries, free and clear of all Liens other than Permitted Liens, except as would not, individually or in the aggregate, have or be reasonably expected to have a Company Material Adverse Effect. All material personal property and leased or licensed personal property assets of the Company and its Subsidiaries are structurally sound and in good operating condition and repair (ordinary wear and tear expected) and are suitable for their present use.

Section 5.20.Real Property.

(a)Section 5.20(a) of the Company Disclosure Letter sets forth a true, correct and complete list as of the date of this Agreement of all Leased Real Property and all Real Property

 

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Leases pertaining to such Leased Real Property. With respect to each parcel of Leased Real Property:

(i)The Company or one of its Subsidiaries holds a good and valid leasehold estate in such Leased Real Property, free and clear of all Liens, except for Permitted Liens.

(ii)The Company and its Subsidiaries have made available to Acquiror true, correct and complete copies of all leases, lease guaranties, subleases and other Contracts for the leasing, use or occupancy of, or otherwise granting a right in and to, the Leased Real Property by or to the Company and its Subsidiaries, including all amendments, terminations and modifications thereof (collectively, the “Real Property Leases”), and none of such Real Property Leases has been modified in any material respect following the date of this Agreement, except in accordance with this Agreement and to the extent that such modifications have been disclosed by the copies thereof made available to Acquiror.

(iii)The Company and its Subsidiaries are in material compliance with all Liens, easements and other matters of record affecting the Leased Real Property, and neither the Company nor any of the Company’s Subsidiaries has received any written notice alleging any default or breach under any of such Liens, easements or other matters and, to the Knowledge of the Company, no default or breach, nor any event that with notice or the passage of time would result in a default or breach, by any other contracting parties has occurred thereunder. The Company’s and its Subsidiaries’, as applicable, possession and quiet enjoyment of the Leased Real Property under such Real Property Leases has not been materially disturbed and, to the Knowledge of the Company, there are no material disputes with respect to such Real Property Leases.

(iv)As of the date of this Agreement, no party, other than the Company or its Subsidiaries, has any right to use or occupy the Leased Real Property or any portion thereof.

(v)Neither the Company nor any of its Subsidiaries has received written notice of any current condemnation proceeding or proposed similar Action or agreement for taking in lieu of condemnation with respect to any portion of the Leased Real Property.

(b)None of the Company nor any of its Subsidiaries owns any real property.

(c)The Leased Real Property and the tangible personal property located at the Leased Real Property constitutes all of the material real property and tangible personal property owned, leased, used or occupied by the Company and the Company Subsidiaries.

Section 5.21.Intellectual Property.

(a)Section 5.21(a) of the Company Disclosure Letter lists each item of Intellectual Property that is registered and applied-for with a Governmental Authority or other applicable registrar and is owned by the Company or any of the Company’s Subsidiaries (“Company Registered Intellectual Property”). The Company or one of the Company’s Subsidiaries is the sole and exclusive beneficial and, with respect to Company Registered

 

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Intellectual Property, record owner of all of the Intellectual Property owned or purported to be owned by the Company and its Subsidiaries (the “Company Owned IP”). All Company Registered Intellectual Property is subsisting, valid and enforceable (or, in the case of applications, validly applied for).

(b)Except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries, taken as a whole, the Company or one of its Subsidiaries owns, free and clear of all Liens (other than Permitted Liens), or has a valid right to use, all Intellectual Property reasonably necessary for the continued conduct of the business of the Company and its Subsidiaries as currently conducted. Section 5.21(b) of the Company Disclosure Letter sets forth a list of material Company Owned IP, other than the Company Registered Intellectual Property set forth in Section 5.21(a) of the Company Disclosure Letter.

(c)The Company and its Subsidiaries have not, since the Company’s inception, materially infringed, misappropriated or otherwise violated and are not materially infringing upon, misappropriating or otherwise violating any Intellectual Property of any third Person. There is no pending or, to the Knowledge of the Company, threatened Action, except for ordinary course prosecution for Company Registered Intellectual Property that the Company has (or purports to have) an ownership interest in, against the Company or its Subsidiaries alleging the Company’s or such Subsidiaries’ infringement, misappropriation or other violation of any Intellectual Property of any third Person, or challenging the scope, validity, or enforceability of any Company Owned IP, and there has not been, since the inception of the Company, any such Action pending or, to the Knowledge of the Company, threatened.

(d)To the Knowledge of the Company, no Person is infringing, misappropriating or otherwise violating or, since the Company’s inception, has infringed, misappropriated or otherwise violated any Company Owned IP in any material respect. The Company and its Subsidiaries have not initiated any Action or sent to any Person, since the Company’s inception, any notice, charge, complaint, claim or other assertion against such third Person alleging material infringement, misappropriation, or other violation by such third Person of any Company Owned IP, or challenging the scope, validity, or enforceability of any Intellectual Property of such third Person.

(e)The Company and its Subsidiaries have taken commercially reasonable measures to protect the confidentiality and value of the Trade Secrets included in the Company Owned IP or otherwise held in confidence by the Company and its Subsidiaries. To the Knowledge of the Company, there has not been any material unauthorized disclosure of or unauthorized access to any such Trade Secrets to or by any Person in a manner that has resulted or may result in the loss of trade secret protection or other rights in and to such information.

(f)No government funding, nor any facilities of a university, college, other educational institution or research center, was used in the development of any Company Owned IP, in a manner that would grant any such third parties or third party agencies any right, title or interest in such Company Owned IP.

(g)With respect to the software used or held for use in the business of the Company and its Subsidiaries, to the Knowledge of the Company, no such software contains any

 

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undisclosed or hidden device or feature designed to disrupt, disable, or otherwise materially impair the functioning of any software or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” or other malicious code or routines that permit unauthorized access or the unauthorized disablement or erasure of such or other software or information or data (or any parts thereof) of the Company or its Subsidiaries or customers of the Company and its Subsidiaries without the user’s express prior written consent.

(h)The Company’s and its Subsidiaries’ use and distribution of (i) software developed by the Company or any Subsidiary or otherwise included in Company Owned IP, and (ii) Open Source Materials, is in material compliance with all terms and conditions of all Open Source Licenses applicable thereto. None of the Company or any Subsidiary of the Company has used any Open Source Materials in a manner that requires any software developed by the Company or any Subsidiary or otherwise included in Company Owned IP to be subject to any Copyleft Terms.

(i)No source code for any software or material proprietary artificial intelligence models or collections of data used or held for use in the business of the Company and its Subsidiaries and included in the Company Owned IP (i) is the subject of any right, title or interest of any other Person, (ii) has been provided, licensed or subjected to the grant of any right, title or interest (including any present, contingent or other right, such as an escrow arrangement) or made available to any customer, business partner, escrow agent or other Person or (iii) is the subject of any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available any such source code or such artificial intelligence models and collections of data to any customer, business partner, escrow agent or other Person, in the case of each of clauses (i), (ii) and (iii), excluding the delivery or making available of data to customers of the Company and its Subsidiaries in the ordinary course of business and Company Service Providers, all of whom are bound by valid, binding, enforceable written Contracts containing confidentiality or non-disclosure obligations substantially similar to the Company’s standard form agreement regarding inventions, confidentiality and other matters. The Company and its Subsidiaries possess all (x) source code for all software owned or purported to be owned by the Company and its Subsidiaries and all other materials, to generate the object code for, and deliver, the Company products and services, and (y) material proprietary artificial intelligence models and collections of data to freely develop and improve their artificial intelligence products and services.

(j)Each current or former officer, employee, manager, consultant or other individual service provider of the Company or its Subsidiaries (“Company Service Provider”) that has delivered, developed, contributed to, modified, or improved Company Owned IP has executed a proprietary information and inventions agreement or certificate of authorship, assigning (via present tense assignment) to the Company or its Subsidiary all of such Company Service Provider’s rights in such delivery, development, contribution, modification, or improvement, in each case since the start of such Company Service Provider’s employment with or other service to the Company or its Subsidiaries, and no Company Service Provider has excluded pursuant to such proprietary information and inventions agreement material works or inventions related to the business of the Company or its Subsidiaries.

(k)Neither this Agreement nor the consummation of the transactions contemplated by this Agreement will result in (i) any material limitation on Acquiror’s, the

 

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Company’s or any of its Subsidiaries’ ability to use any Company Owned IP necessary to conduct the business of the Company and its Subsidiaries as currently conducted, (ii) Acquiror or the Company or its Subsidiaries, being obligated to grant to any third Person any ownership interest in, or any license, covenant not to sue or right under or with respect to, any Company Owned IP or (iii) Acquiror or the Company or its Subsidiaries, being bound by, or subject to, any restriction to use, register or otherwise exploit any material Intellectual Property licensed or owned by the Company.

Section 5.22.Privacy and Cybersecurity.

(a)The Company and its Subsidiaries are in compliance in all material respects with, and since the Company’s inception have been in compliance in all material respects with, (i) all applicable Laws relating to the privacy and/or collection, retention, protection and use of information relating to or reasonably capable of being associated with an individual, device or household (“Personal Information”) collected, used, or held for use in connection with the business of the Company or its Subsidiaries, (ii) the Company’s and its Subsidiaries’ published privacy, cybersecurity and data security policies, as applicable, and (iii) the Company’s and its Subsidiaries’ contractual obligations concerning cybersecurity, data security and the security of the information technology systems used by the Company and its Subsidiaries (the foregoing clauses (i)‑(iii), “Privacy and Cybersecurity Requirements”), other than any non-compliance that, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries. There are not, and have not been, any Actions by any Person, or any investigations by any Governmental Authority, pending or, to the Knowledge of the Company, threatened against the Company or its Subsidiaries alleging a violation of any Privacy and Cybersecurity Requirements. The Company and its Subsidiaries take appropriate measures to protect Personal Information against unauthorized access, use, modification, or other misuse, including through administrative, technical and physical safeguards.

(b)Except as set forth on Section 5.22(b) of the Company Disclosure Letter, since the Company’s inception, (i) there have been no security breaches or unauthorized processing of the Company IT Systems or Personal Information, and (ii) there has been no failure, breakdown, performance reduction, disruption, or other adverse event affecting any Company IT Systems that adversely affected the Company’s and its Subsidiaries’ business or operations. The Company and its Subsidiaries have aligned their cybersecurity practices with relevant industry standards, carried out external and internal penetration tests and vulnerability assessments of the Company IT Systems and their business environment to identify any cybersecurity threats on no less than an annual basis, and have remediated any and all material vulnerabilities identified through such tests and assessments. The Company IT Systems are in good working order and do not contain any defect, and operate and perform as necessary to conduct the business of the Company and its Subsidiaries. Neither the Company, its Subsidiaries, nor any third party acting at the direction or authorization of the Company or its Subsidiaries have paid any perpetrator of any actual or threatened security breach or cyber attack, including a ransomware attack or a denial-of-service attack.

(c)Except as set forth on Section 5.22(c) of the Company Disclosure Letter, the Company and its Subsidiaries have established and maintained, and use commercially reasonable efforts to ensure that all third Persons controlling Company IT Systems or processing

 

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Personal Information in connection with a product or service of the Company or its Subsidiaries have established and maintained, commercially reasonable and legally compliant measures to protect the Company IT Systems and all Trade Secrets and Personal Information in their possession or control against unauthorized access, use, modification, disclosure or other misuse, including through written internal and external policies and procedures (that comply with the Privacy and Cybersecurity Requirements and are at least as stringent as one or more relevant industry standards) and organizational, administrative, technical and physical safeguards. Neither the Company nor any Subsidiary of the Company, nor, to the Knowledge of the Company, any third Person controlling any Company IT System or processing Personal Information on their behalf, has (i) experienced any incident in which such information was stolen or improperly accessed, including in connection with a breach of security or (ii) received any written notice or complaint (or to the Knowledge of the Company, oral notice or complaint) from any Person with respect to any of the foregoing, nor has any such notice or complaint been threatened in writing or, to the Knowledge of the Company, orally against the Company or any of the Company’s Subsidiaries. Except as set forth on Section 5.22(c) of the Company Disclosure Letter, where the Company or its Subsidiaries have any third Person controlling Company IT System or processing Personal Information on their behalf, such third Person has provided guarantees, warranties or covenants in relation to processing of Personal Information, confidentiality and security measures and has agreed to comply with those obligations in a manner sufficient for the Company’s and its Subsidiaries’ compliance with the Privacy and Cybersecurity Requirements.

(d)The consummation of the transactions contemplated hereby shall not breach or otherwise cause any violation in any material respect of any Privacy and Cybersecurity Requirements.

Section 5.23.Environmental Matters.

(a)The Company and its Subsidiaries are and have been in compliance in all material respects with all Environmental Laws and hold all of the material permits required under applicable Environmental Laws for their current operations.

(b)There has been no Release of any Hazardous Materials at, in, on, under or from any Leased Real Property or, to the Knowledge of the Company, any real property formerly owned, leased or operated by the Company or any of its Subsidiaries or any other location where Hazardous Materials generated by the Company or any of the Company’s Subsidiaries have been transported to, sent, placed or disposed of, in a manner which could reasonably be expected to result in material liability to the Company or any of its Subsidiaries under Environmental Laws.

(c)Neither the Company nor any of its Subsidiaries is subject to any Governmental Order relating to any material violation of or non-compliance with Environmental Laws by the Company or its Subsidiaries or the investigation, sampling, monitoring, treatment, remediation, removal or cleanup of any Hazardous Materials.

(d)Neither the Company nor any of its Subsidiaries has received any written notice, demand, request for information, citation, or summons or order, and there is no Legal Proceeding or investigation pending or, to the Knowledge of the Company, threatened with respect to the Company’s and its Subsidiaries’ compliance with or liability under Environmental Laws.

 

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(e)The Company has made available to Acquiror true, correct and complete copies of all material environmental reports, assessments, audits and inspections and any material communications or notices from or to any Governmental Authority concerning any material non-compliance of the Company or any of the Company’s Subsidiaries with, or liability of the Company or any of the Company’s Subsidiaries under, Environmental Law.

Section 5.24.Absence of Changes. From December 31, 2020 to the date of this Agreement, except as expressly contemplated by this Agreement, (a) the Company and its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course and in a manner consistent with past practice, other than due to any actions taken due to or in response to a Contagion Event, (b) there has not been any Company Material Adverse Effect, and (c) except as set forth on Section 5.24(c) of the Company Disclosure Schedule, there has not been any action taken or agreed upon by the Company or any of its Subsidiaries that would be prohibited by Section 7.1 if such action were taken on or after the date hereof without the consent of the Company.

Section 5.25.Interested Party Transactions.

(a)Except as set forth on Section 5.25(a) of the Company Disclosure Letter, no (i) employee, officer, member, partner, manager or director of the Company or any of its Subsidiaries or Affiliates, (ii) holder of Equity Interests or derivative securities of the Company or any of its Subsidiaries or (iii) member of any of the respective immediate families of any of the foregoing is indebted to the Company or any of its Subsidiaries for borrowed money, nor is the Company or any of its Subsidiaries indebted for borrowed money (or committed to make loans or extend or guarantee credit) to any of such Persons, other than (A) for payment of salary, bonuses and other compensation for services rendered, (B) reimbursement for reasonable expenses incurred in connection with the business of the Company or any of its Subsidiaries and (C) for other employee benefits made generally available to all employees.

(b)Except as set forth on Section 5.25(b) of the Company Disclosure Letter, to the Knowledge of the Company, no officer, director, employee, member, partner, manager or holder of Equity Interests or derivative securities of the Company or any of its Subsidiaries or Affiliates (each, an “Insider”) or any member of an Insider’s immediate family is, directly or indirectly, interested in any Contract with or assets of the Company or any of its Subsidiaries (other than such Contracts related to any such Person’s ownership of capital stock of the Company or such Person’s employment or consulting arrangements with the Company or any of its Subsidiaries).

Section 5.26.Anti-Corruption and Anti-Money Laundering Compliance.

(a)Since the Company’s inception, neither the Company nor any of its Subsidiaries, nor any director, member, partner, manager, officer, employee or, to the Knowledge of the Company, other Representative acting on behalf of the Company or any of the Company’s Subsidiaries, has directly or indirectly offered, given or attempted to give anything of value to: (i) any official or employee of a Governmental Authority, any political party or official thereof or any candidate for political office or (ii) any other Person, in any such case while knowing that all or a portion of such money or thing of value will be offered, given or promised, directly or

 

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indirectly, to any official or employee of a Governmental Authority, political party or official thereof, candidate for political office or other Person, in each case in violation of the Anti-Bribery Laws.

(b)Since the Company’s inception, there have been no allegations, reports, current or pending internal investigations, third-party investigations (including by any Governmental Authority), or internal or external audits that address any material allegations or information concerning possible material violations of the Anti-Bribery Laws related to the Company or any of the Company’s Subsidiaries or any director, member, partner, manager, officer, employee or, to the Knowledge of the Company or other Representative acting on behalf of the Company or any of the Company’s Subsidiaries.

(c)There are no current or pending internal investigations, third-party investigations (including by any Governmental Authority) or internal or external audits that address any material allegations or information concerning possible violations of Anti-Money Laundering Laws related to the Company or any of its Subsidiaries. Since the Company’s inception, the Company and its Subsidiaries and each director, member, partner, manager, officer, employee and, to the Knowledge of the Company, each other Representative acting on behalf of the Company or any of the Company’s Subsidiaries, have been in compliance with all relevant Anti-Money Laundering Laws in all material respects.

Section 5.27.Sanctions and Customs & Trade Laws Compliance.

(a)The Company and its Subsidiaries, and their respective directors, members, partners, managers, officers, employees and, to the Knowledge of the Company, other Representatives, (i) are, and have been since the Company’s inception, in compliance with all Customs & Trade Laws and Sanctions Laws, and (ii) have obtained all required Licenses from, and have made any material filings with and complied with all requirements of, any applicable Governmental Authority under the Customs & Trade Laws and Sanctions Laws (the “Export Approvals”). There are no pending or, to the Knowledge of the Company, threatened, Actions, voluntary disclosures or Legal Proceedings against the Company or any of the Company’s Subsidiaries related to any Customs & Trade Laws or Sanctions Laws or any Export Approvals.

(b)Neither the Company nor any of its Subsidiaries nor any of their respective directors, members, partners, managers, officers, employees or, to the Knowledge of the Company, other Representatives or other Persons acting on behalf of the Company or any of the Company’s Subsidiaries, (i) is, or has since the Company’s inception been, a Sanctioned Person or Restricted Person or (ii) has transacted business directly or indirectly with any Restricted Person or Sanctioned Person or in any Sanctioned Country.

Section 5.28.Information Supplied. None of the information supplied or to be supplied by the Company or any of the Company’s Subsidiaries, or by any other Person on their behalf, specifically in writing for inclusion in the Registration Statement and the Proxy Statement will, at the time that the Registration Statement is declared effective, on the date on which the Proxy Statement is first mailed to the Acquiror Stockholders, at the time of the Acquiror Stockholders’ Meeting or at the Effective Time 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

 

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(with respect to the Proxy Statement, in light of the circumstances under which they were made), not misleading.

Section 5.29.Suppliers.

(a)Section 5.29(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, the top ten (10) suppliers based on the aggregate Dollar value of the Company’s and its Subsidiaries’ transaction volume with such counterparty during the trailing twelve (12) months for the period ending December 31, 2020, as well as any new suppliers that, based on the projected aggregate Dollar value of the Company’s and its Subsidiaries’ transaction volume with such counterparty for the calendar year 2021, would reasonably be expected to be in the top ten (10) suppliers during the trailing twelve (12) months for the period ending December 31, 2021 (the “Top Suppliers”).

(b)Except as set forth on Section 5.29(b) of the Company Disclosure Letter, none of the Top Suppliers has, as of the date of this Agreement, informed in writing any of the Company or any of the Company’s Subsidiaries that it will, or, to the Knowledge of the Company, has threatened to, terminate, cancel, or materially limit or materially and adversely modify any of its existing business with the Company or any of the Company’s Subsidiaries (other than due to the expiration of an existing contractual arrangement or Contagion Event), and to the Knowledge of the Company, none of the Top Suppliers is, as of the date of this Agreement, otherwise involved in or threatening in writing a material dispute against the Company or its Subsidiaries or their respective businesses.

Section 5.30.Customers.

(a)Section 5.30(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, the top ten (10) customers based on the aggregate Dollar value of the Company’s and its Subsidiaries’ transaction volume with such counterparty during the trailing twelve (12) months for the period ending December 31, 2020, as well as any new customers that, based on the projected aggregate Dollar value of the Company’s and its Subsidiaries’ transaction volume with such counterparty for the calendar year 2021, would reasonably be expected to be in the top ten (10) customers during the trailing twelve (12) months for the period ending December 31, 2021 (the “Top Customers”).

(b)Except as set forth on Section 5.30(b) of the Company Disclosure Letter, none of the Top Customers has, as of the date of this Agreement, informed in writing any of the Company or any of the Company’s Subsidiaries that it will, or, to the Knowledge of the Company, has threatened to, terminate, cancel, or materially limit or materially and adversely modify any of its existing business with the Company or any of the Company’s Subsidiaries (other than due to the expiration of an existing contractual arrangement or Contagion Event), and to the Knowledge of the Company, none of the Top Customers is, as of the date of this Agreement, otherwise involved in or threatening in writing a material dispute against the Company or its Subsidiaries or their respective businesses.

Section 5.31.Government Contracts. Except as set forth on Section 5.31 of the Company Disclosure Letter, the Company and its Subsidiaries are not party to (a) any Contract, including an

 

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individual task order, delivery order, purchase order, basic ordering agreement, letter Contract or blanket purchase agreement between the Company or any of its Subsidiaries, on the one hand, and any Governmental Authority, on the other hand, or (b) any subcontract or other Contract by which the Company or one of its Subsidiaries has agreed to provide goods or services through a prime contractor directly to a Governmental Authority that is expressly identified in such subcontract or other Contract as the ultimate consumer of such goods or services. None of the Company or any of its Subsidiaries have provided any offer, bid, quotation or proposal to sell products made or services provided by the Company or any of its Subsidiaries that, if accepted or awarded, would lead to any Contract or subcontract of the type described by the foregoing sentence.

Section 5.32.No Additional Representations or Warranties. Except as provided in this Article V, neither the Company nor any of its Affiliates, nor any of their respective Representatives has made, or is making, any representation or warranty whatsoever to Acquiror or Merger Sub or their Affiliates and no such party shall be liable in respect of the accuracy or completeness of any information provided or made available to Acquiror or Merger Sub or their Affiliates. Without limiting the foregoing, Acquiror acknowledges that Acquiror and its advisors have made their own investigation of the Company and its Subsidiaries. Notwithstanding the foregoing, nothing in this Section 5.32 shall limit Acquiror’s remedies with respect to claims of fraud, with respect to the representations or warranties set forth in this Article V.

Article VI
REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND MERGER SUB

Except as set forth in (a) in the case of Acquiror, any Acquiror SEC Filings filed or furnished on or prior to the date hereof (excluding any disclosures in any risk factors section that do not constitute statements of fact, disclosures in any forward-looking statements disclaimer and other disclosures that are generally cautionary, predictive or forward-looking in nature) or (b) in the case of Acquiror and Merger Sub, in the disclosure letter delivered by Acquiror and Merger Sub to the Company (the “Acquiror Disclosure Letter”) on the date of this Agreement (each section of which, subject to Section 12.9, qualifies the correspondingly numbered and lettered representations in this Article VI), Acquiror and Merger Sub represent and warrant to the Company as follows:

Section 6.1.Acquiror and Merger Sub Organization. Each of Acquiror and Merger Sub has been duly incorporated and is validly existing as a corporation in good standing under the Laws of its jurisdiction of incorporation, and has the requisite corporate power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. The copies of Acquiror’s Governing Documents and the Governing Documents of Merger Sub, in each case, as amended to the date of this Agreement and as previously delivered by or on behalf of Acquiror to the Company, are true, correct and complete. Merger Sub has no assets or operations other than those required to effect the transactions contemplated hereby. All of the Equity Interests of Merger Sub are held directly by Acquiror. Each of Acquiror and Merger Sub is duly qualified and licensed and in good standing to do business in all jurisdictions in which it is conducting business, or the operation, ownership or leasing of its properties makes such qualification, license or good standing, as applicable, necessary, other than in such jurisdiction where failure to be so qualified, licensed or in good standing would not, individually or in the aggregate, reasonably be expected to be material to Acquiror and its Subsidiaries, taken as a whole,

 

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or have a material adverse effect on the ability of Acquiror or Merger Sub to perform any obligation of Acquiror or Merger Sub under this Agreement or the documents to which Acquiror or Merger Sub is a party contemplated hereby or the consummation of the transactions contemplated hereby and thereby.

Section 6.2.Due Authorization.

(a)Each of Acquiror and Merger Sub has all requisite corporate power and authority (i) to execute and deliver this Agreement and the other documents to which it is a party contemplated hereby, and (ii) subject to receipt of the Acquiror Stockholder Approval and the approvals described in Section 6.7, to consummate the transactions contemplated hereby and thereby and to perform all of its obligations hereunder and thereunder (including the Merger). On or prior to the date of this Agreement, each of the Boards of Directors of Acquiror and Merger Sub has duly adopted resolutions (a) determining that the Merger is fair to and in the best interests of Acquiror and Merger Sub and their respective stockholders, as applicable, (b) authorizing and approving the execution, delivery and performance by Acquiror and Merger Sub of this Agreement and the other documents to which Acquiror or Merger Sub, as applicable, is a party contemplated hereby and the transactions contemplated hereby and thereby (including the Merger) and declared it advisable for Acquiror and Merger Sub, as applicable, to enter into this Agreement and the other documents contemplated hereby and (c) recommending the approval and adoption of this Agreement and the documents contemplated hereby, and the transactions contemplated hereby and thereby, including the Merger, by the Acquiror Stockholders and the sole stockholder of Merger Sub, as applicable. No other corporate proceeding on the part of Acquiror or Merger Sub is necessary to authorize this Agreement and the other documents to which it is a party contemplated hereby (other than the Acquiror Stockholder Approval). This Agreement has been, and on or prior to the Closing, the other documents to which Acquiror or Merger Sub is a party contemplated hereby will be, duly and validly executed and delivered by each of Acquiror and Merger Sub, and this Agreement constitutes, and on or prior to the Closing, the other documents to which Acquiror or Merger Sub is a party contemplated hereby will constitute, in each case assuming the due authorization, execution and delivery by the other parties hereto and thereto, a legal, valid and binding obligation of each of Acquiror and Merger Sub, as applicable, enforceable against Acquiror and Merger Sub in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.

(b)The affirmative vote of (i) holders of a majority of the outstanding shares of Acquiror Class A Common Stock and Acquiror Class B Common Stock, voting together as a single class, cast at the Acquiror Stockholders’ Meeting shall be required to approve the Merger Proposal, (ii) holders of a majority of the outstanding shares of Acquiror Class A Common Stock and Acquiror Class B Common Stock, voting together as a single class, cast at the Acquiror Stockholders’ Meeting shall be required to approve the NASDAQ Proposal, (iii) (A) holders of a majority of the outstanding shares of Acquiror Class A Common Stock and Acquiror Class B Common Stock, voting together as a single class, and (B) holders of a majority of the outstanding shares of Acquiror Class B Common Stock, voting separately as a single class, shall be required to approve the Amendment Proposal, and (iv) holders of a majority of the outstanding shares of Acquiror Class A Common Stock and Acquiror Class B Common Stock, voting together as a single class, cast at the Acquiror Stockholders’ Meeting shall be required to approve the Incentive Plan

 

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Proposal, the Purchase Plan Proposal and the CEO Incentive Plan Proposal, in each case, assuming a quorum is present, to approve such Transaction Proposal, and are the only votes of any Equity Interests of Acquiror necessary in connection with the entry into this Agreement by Acquiror and Merger Sub and the consummation of the transactions contemplated hereby, including the Merger (the approval by Acquiror Stockholders of all of the foregoing, collectively, the “Acquiror Stockholder Approval”).

(c)At a meeting duly called and held, the Board of Directors of Acquiror has unanimously approved the transactions contemplated by this Agreement as a Business Combination.

Section 6.3.No Conflict. Subject to the Acquiror Stockholder Approval and the receipt of the consents, approvals, authorizations and other requirements set forth in Section 6.7, the execution and delivery by Acquiror and Merger Sub of this Agreement and the other documents contemplated hereby to which Acquiror and Merger Sub, as applicable, are a party and the consummation of the transactions contemplated hereby and thereby do not and will not (a) violate or conflict with any provision of, or result in the breach of, or default under the Governing Documents of Acquiror or Merger Sub, (b) violate or conflict with any provision of, or result in the breach of, or default under any Law or Governmental Order applicable to Acquiror or Merger Sub, (c) violate or conflict with any provision of, or result in the breach of, result in the loss of any right or benefit, or cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any material Contract to which Acquiror or Merger Sub is a party or by which Acquiror or Merger Sub may be bound, or terminate or result in the termination of any such material Contract or (d) result in the creation of any Lien upon any of the properties or assets of Acquiror or Merger Sub, except, in the case of clauses (b) through (d), to the extent that any such violations, conflicts, breaches, defaults or other occurrences would not, individually or in the aggregate, reasonably be expected to be material to Acquiror and its Subsidiaries, taken as a whole, or have a material adverse effect on the ability of Acquiror or Merger Sub to perform any obligation of Acquiror or Merger Sub under this Agreement or the documents to which Acquiror or Merger Sub is a party contemplated hereby or the consummation of the transactions contemplated hereby and thereby.

Section 6.4.Litigation and Proceedings. (a) There are no pending or, to the Knowledge of Acquiror, threatened Legal Proceedings against Acquiror or Merger Sub or their respective properties or assets, (b) other than with respect to audits, examinations or investigations in the ordinary course of business conducted by a Governmental Authority pursuant to a material Contract, there are no pending or, to the Knowledge of Acquiror, threatened audit, examination or investigation by any Governmental Authority against Acquiror or Merger Sub or any of their respective properties or assets, (c) there is no pending or threatened Legal Proceeding by Acquiror or Merger Sub against any third party and (d) there is no outstanding Governmental Order imposed upon Acquiror or Merger Sub nor are any properties or assets of Acquiror or Merger Sub bound or subject to any Governmental Order, except, in each case of clauses (a)-(d), as would not be, or would not reasonably be expected to be, individually or in the aggregate, material to Acquiror. As of the date hereof, each of Acquiror and Merger Sub is in compliance with all applicable Laws in all material respects. Acquiror and Merger Sub have not received any written notice of, or been charged with, the violation of any Laws, except where such violation has not been, individually or in the aggregate, material to Acquiror.

 

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Section 6.5.SEC Filings. Acquiror has timely filed or furnished all statements, prospectuses, registration statements, forms, reports and documents required to be filed by it with the SEC since February 8, 2021, pursuant to the Exchange Act or the Securities Act (collectively, as they have been amended since the time of their filing through the date hereof, the “Acquiror SEC Filings”). Each of the Acquiror SEC Filings, as of the respective date of its filing, and as of the date of any amendment, complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder applicable to the Acquiror SEC Filings. As of the respective date of its filing (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), the Acquiror SEC Filings did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Acquiror SEC Filings. To the Knowledge of Acquiror, none of the Acquiror SEC Filings filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.

Section 6.6.Internal Controls; Listing; Financial Statements.

(a)Except as not required in reliance on exemptions from various reporting requirements by virtue of Acquiror’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”), Acquiror has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to Acquiror is made known to Acquiror’s principal executive officer and its principal financial officer by others within Acquiror, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared. Since February 8, 2021, Acquiror has established and maintained a system of “internal controls over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of Acquiror’s financial reporting and the preparation of Acquiror Financial Statements for external purposes in accordance with GAAP.

(b)Each director and executive officer of Acquiror has filed with the SEC on a timely basis all statements required by Section 16(a) of the Exchange Act and the rules and regulations promulgated thereunder. Acquiror has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.

(c)Since February 8, 2021, Acquiror has complied in all material respects with the applicable listing and corporate governance rules and regulations of the Nasdaq Capital Market (“NASDAQ”). The Acquiror Class A Common Stock, the Acquiror Units and the Acquiror Public Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on NASDAQ. There is no Legal Proceeding pending or, to the Knowledge of Acquiror, threatened against Acquiror by NASDAQ or the SEC with respect to any intention by such entity to delist or to deregister the Acquiror Class A Common Stock, the Acquiror Units or the Acquiror Public Warrants. None of Acquiror or Merger Sub or their respective Affiliates has taken any action in an attempt to terminate the registration or listing of the Acquiror Class A Common Stock, the

 

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Acquiror Units or the Acquiror Public Warrants under the Exchange Act or on NASDAQ, as applicable, except as contemplated by this Agreement.

(d)The Acquiror SEC Filings contain true, correct and complete copies of (x) the audited balance sheet as of December 31, 2020, and audited statements of operations, changes in stockholders’ equity and cash flows of Acquiror for the period from October 29, 2021 (inception) through December 31, 2020, together with the auditor’s reports thereon, of Acquiror, (y) the audited balance sheet as of February 11, 2021, together with the auditor’s reports thereon, of Acquiror and (z) the unaudited condensed balance sheet as of March 31, 2021, and unaudited condensed statements of operations, changes in stockholders’ equity and cash flows, of Acquiror for the three (3) months ended March 31, 2021 (collectively, the “Acquiror Financial Statements”). Except as disclosed in the Acquiror SEC Filings, the Acquiror Financial Statements (i) fairly present in all material respects the financial position of Acquiror, as at the respective dates thereof, and the results of operations and consolidated cash flows for the respective periods then ended (subject, in the case of the unaudited Acquiror Financial Statements, to normal year-end adjustments that are not material in amount or kind and the absence of footnotes), (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto and, in the case of the unaudited Acquiror Financial Statements, the absence of footnotes or the inclusion of limited footnotes) and (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant in effect as of the respective dates thereof. The books and records of Acquiror have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements.

(e)There are no outstanding loans or other extensions of credit made by Acquiror to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of Acquiror.

(f)Except as set forth in Acquiror SEC Filings filed prior to the date of this Agreement, Acquiror has not identified or been made aware of, and has not received from any independent auditor of Acquiror any written notification of, (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by Acquiror, (ii) any fraud, whether or not material, that involves Acquiror’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by Acquiror or (iii) any written claim or allegation regarding any of the foregoing.

Section 6.7.Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of the Company contained in this Agreement, no Governmental Authorization is required on the part of Acquiror or Merger Sub with respect to Acquiror’s execution or delivery of this Agreement or the documents to which Acquiror or Merger Sub, as applicable, is a party contemplated hereby or the consummation of the transactions contemplated hereby and thereby, except for (a) applicable requirements of the HSR Act, (b) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not, individually or in the aggregate, reasonably be expected to be material to Acquiror or have a material adverse effect on the ability of Acquiror to perform any obligation of Acquiror under this Agreement or the documents to which Acquiror or Merger Sub, as applicable,

 

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is a party contemplated hereby or the consummation of the transactions contemplated hereby and thereby and (c) the filing of the Merger Certificate in accordance with the DGCL.

Section 6.8.Trust Account. As of the date of this Agreement, Acquiror has marketable securities with a value of at least three hundred forty-five million Dollars ($345,000,000) in the Trust Account (including, if applicable, an aggregate of twelve million and seventy-five thousand Dollars ($12,075,000) of deferred underwriting commissions and other fees being held in the Trust Account), such monies invested in United States government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act pursuant to the Investment Management Trust Agreement, dated as of February 8, 2021 (the “Trust Agreement”), between Acquiror and American Stock Transfer & Trust Company, LLC, as trustee (the “Trustee”). The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of Acquiror and, to the Knowledge of Acquiror, the Trustee, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. The Trust Agreement has not been terminated, repudiated, rescinded, amended or supplemented or modified, in any respect, and, to the Knowledge of Acquiror, no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no separate Contracts, side letters or other arrangements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the Acquiror SEC Filings to be inaccurate or that would entitle any Person (other than stockholders of Acquiror holding Acquiror Class A Common Stock who shall have elected to redeem their shares of Acquiror Class A Common Stock pursuant to Acquiror’s Governing Documents and otherwise with respect to deferred underwriting commissions) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released other than to pay Taxes and payments with respect to all Acquiror Share Redemptions. There are no claims or proceedings pending or, to the Knowledge of Acquiror, threatened with respect to the Trust Account. Acquiror has performed all material obligations required to be performed by it to date under, and is not in default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. As of the Effective Time, the obligations of Acquiror to dissolve or liquidate pursuant to Acquiror’s Governing Documents shall terminate, and as of the Effective Time, Acquiror shall have no obligation whatsoever pursuant to Acquiror’s Governing Documents to dissolve and liquidate the assets of Acquiror by reason of the consummation of the transactions contemplated hereby. To the Knowledge of Acquiror, as of the date hereof, following the Effective Time, no Acquiror Stockholder shall be entitled to receive any amount from the Trust Account except to the extent such Acquiror Stockholder is exercising an Acquiror Share Redemption. As of the date hereof, assuming the accuracy of the representations and warranties of the Company contained herein and the compliance by the Company with its obligations hereunder, neither Acquiror nor Merger Sub have any reason to believe that any of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available to Acquiror and Merger Sub on the Closing Date.

Section 6.9.Investment Company Act; JOBS Act. Acquiror is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment

 

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company,” in each case within the meaning of the Investment Company Act. Acquiror constitutes an “emerging growth company” within the meaning of the JOBS Act.

Section 6.10.Absence of Changes. Except as set forth in Acquiror SEC Filings filed prior to the date of this Agreement, and except as contemplated by this Agreement, since February 8, 2021 to the date of this Agreement, (a) Acquiror has conducted its business in all material respects in the ordinary course and in a manner consistent with past practice, other than due to any actions taken due to or in response to a Contagion Event, (b) there has not been any event or occurrence that has had, or would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Acquiror or Merger Sub to enter into and perform their obligations under this Agreement (an “Acquiror Material Adverse Effect”) and (c) there has not been any action taken or agreed upon by Acquiror or Merger Sub that would be prohibited by Section 8.5 if such action were taken on or after the date hereof without the consent of the Company.

Section 6.11.No Undisclosed Liabilities. Except for any fees and expenses payable by Acquiror or Merger Sub as a result of or in connection with the consummation of the transactions contemplated hereby, there is no other liability, debt (including Indebtedness) or obligation of, or claim or judgment against, Acquiror or Merger Sub (whether direct or indirect, absolute or contingent, accrued or unaccrued, known or unknown, liquidated or unliquidated, or due or to become due) required by GAAP to be included on a consolidated balance sheet of Acquiror and Merger Sub, except for liabilities, debts (including Indebtedness), obligations, claims or judgement (a) reflected or reserved for on the Acquiror Financial Statements or expressly disclosed in the notes thereto or otherwise in the Acquiror SEC Filings, (b) that have arisen since the date of the most recent balance sheet included in the Acquiror Financial Statements in the ordinary course of business of Acquiror and Merger Sub, or (c) which would not be, or would not reasonably be expected to be, individually or in the aggregate, material to Acquiror.

Section 6.12.Capitalization of Acquiror.

(a)As of the date of this Agreement, and without taking into effect the issuance of the Forward Purchase Securities, the authorized capital stock of Acquiror consists of (i) 100,000,000 shares of Acquiror Class A Common Stock, of which 34,500,000 are issued and outstanding, (ii) 10,000,000 shares of Acquiror Class B Common Stock, of which 8,625,000 are issued and outstanding and (iii) 1,000,000 shares of preferred stock, par value $0.0001 per share, of Acquiror, of which no shares are issued and outstanding. The foregoing represents all of the issued and outstanding shares of capital stock of Acquiror as of the date of this Agreement. In addition, (x) 8,625,000 shares of Acquiror Class A Common Stock are issuable upon the exercise of the Acquiror Public Warrants, (y) 6,266,667 shares of Acquiror Class A Common Stock are issuable upon the exercise of the Acquiror Private Warrants and (z) up to 1,000,000 shares of Acquiror Class A Common Stock are issuable upon the exercise of the Working Capital Warrants. All issued and outstanding shares of Acquiror Class A Common Stock (i) have been duly authorized and validly issued and are fully paid and non-assessable; (ii) have been offered, sold and issued in compliance with applicable Law, including Securities Laws, and all requirements set forth in (A) Acquiror’s Governing Documents, and (B) any other applicable Contracts governing the issuance of such Equity Interests; (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or

 

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similar right under any provision of any applicable Law or any Contract to which Acquiror is a party or otherwise bound (other than transfer restrictions under applicable Securities Laws and Acquiror’s Governing Documents); and (iv) are free and clear of any Liens (other than such Liens as created by applicable Securities Laws). All shares of capital stock of Acquiror are uncertificated, book-entry Equity Interests.

(b)Except as set forth in this Section 6.12 or as contemplated by this Agreement or the other documents contemplated hereby, and other than in connection with the Forward Purchase Agreement, the PIPE Investment, Acquiror’s Governing Documents and the Trust Agreement, Acquiror has not granted any outstanding subscriptions, options, stock appreciation rights, warrants, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for Equity Interests of Acquiror, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional Equity Interests, the sale of Equity Interests, or for the repurchase or redemption of Equity Interests of Acquiror or the value of which is determined by reference to Equity Interests of the Company, and there are no voting trusts, proxies or agreements of any kind which may obligate Acquiror to issue, purchase, register for sale, redeem or otherwise acquire Equity Interests.

(c)The Aggregate Merger Consideration, when issued in accordance with the terms hereof, shall be duly authorized and validly issued, fully paid and non-assessable and issued in compliance with all applicable Securities Laws and not subject to, and not issued in violation of, any Lien, purchase option, call option, right of first refusal, preemptive right, subscription right or similar right under any provision of applicable Law, Acquiror’s Governing Documents, or any Contract to which Acquiror is a party or otherwise bound.

(d)On or prior to the date of this Agreement, Acquiror has entered into Subscription Agreements with PIPE Investors, true and correct copies of which have been provided to the Company on or prior to the date of this Agreement, pursuant to which, and on the terms and subject to the conditions of which, such PIPE Investors have agreed, in connection with the transactions contemplated hereby, to purchase from Acquiror, shares of Acquiror Class A Common Stock for a PIPE Investment Amount of at least seventy-five million Dollars ($75,000,000) (such amount, the “Minimum PIPE Investment Amount”). Such Subscription Agreements are in full force and effect with respect to, and binding on, Acquiror and, to the Knowledge of Acquiror, on each PIPE Investor party thereto, in accordance with their terms. There are no other agreements, side letters or arrangements between Acquiror and any PIPE Investor relating to any such Subscription Agreement that would adversely affect the obligation of such PIPE Investor to purchase from Acquiror the applicable portion of the PIPE Investment Amount set forth in such Subscription Agreement of such PIPE Investor and, as of the date hereof, Acquiror does not have actual Knowledge of any facts or circumstances that would reasonably be expected to result in any of the conditions set forth in any such Subscription Agreement not being satisfied, or the Minimum PIPE Investment Amount not being available to Acquiror, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Acquiror under any material term or condition of any such Subscription Agreement and, as of the date hereof, Acquiror has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of closing to be satisfied by it contained in any such Subscription Agreement. Such Subscription Agreements contain all of the

 

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conditions precedent (other than the conditions contained in this Agreement and the Ancillary Agreements, as applicable) to the obligations of the PIPE Investors to contribute to Acquiror the applicable portion of the PIPE Investment Amount set forth in such Subscription Agreements on the terms therein. No fees, cash consideration or other discounts are payable or have been agreed to be paid by Acquiror or any of its Subsidiaries (including, from and after the Closing, the Surviving Company and its Subsidiaries) to any PIPE Investor in respect of its PIPE Investment.

(e)Acquiror has no Subsidiaries apart from Merger Sub, and, except for the Trust Account, does not own, directly or indirectly, any Equity Interests or other interests or investments (whether equity or debt) in any Person, whether incorporated or unincorporated. Acquiror is not a party to any Contract that obligates Acquiror to invest money in, loan money to or make any capital contributions to any other Person.

(f)Acquiror has provided to the Company a true, correct and complete copy of the Forward Purchase Agreement, pursuant to which GSAM has committed, subject to the terms thereof, to purchase the Forward Purchase Securities in a private placement that will close substantially concurrently with the Closing. The Forward Purchase Agreement is in full force and effect and has not been withdrawn or terminated in any respect, and no withdrawal, termination, amendment or modification is contemplated by Acquiror or, to the Knowledge of Acquiror, by GSAM. The Forward Purchase Agreement is a legal, valid and binding obligation of Acquiror and, to the Knowledge of Acquiror, GSAM, and neither the execution or delivery by any party thereto nor the performance of any party’s obligations under the Forward Purchase Agreement violates or will violate any applicable Laws. There are no other agreements, side letters, or arrangements between Acquiror and GSAM that could affect the obligation of GSAM to purchase the Forward Purchase Securities in accordance with the Forward Purchase Agreement, and, as of the date of this Agreement, to the Knowledge of Acquiror, there are no facts or circumstances that may reasonably be expected to result in any of the conditions set forth in the Forward Purchase Agreement not being satisfied by the Acquiror or GSAM on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Acquiror under any material term or condition of the Forward Purchase Agreement. The Forward Purchase Agreement contains all of the conditions precedent (other than the conditions contained in this Agreement) to the obligations of GSAM to purchase from Acquiror the Forward Purchase Securities in accordance with the Forward Purchase Agreement.

Section 6.13.Brokers’ Fees. Except as set forth on Section 6.13 of the Acquiror Disclosure Letter, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated hereby based upon arrangements made by Acquiror or any of its Affiliates.

Section 6.14.Indebtedness. Neither Acquiror nor Merger Sub has any Indebtedness.

Section 6.15.Taxes.

(a)All income and other material Tax Returns required to be filed by or with respect to Acquiror or Merger Sub have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct

 

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and complete in all material respects and all material Taxes due and payable by or on behalf of Acquiror or Merger Sub (whether or not shown on any Tax Return) have been paid.

(b)Acquiror and Merger Sub have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.

(c)There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of Acquiror or Merger Sub.

(d)No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted or assessed by any Governmental Authority against Acquiror or Merger Sub, except for deficiencies that have been satisfied, settled, withdrawn or otherwise resolved or claims, assessments, deficiencies or proposed adjustments being contested in good faith and for which adequate reserves have been established in accordance with GAAP.

(e)There is no ongoing or pending material Tax audit or other examination of Acquiror or Merger Sub and there are no waivers, extensions or requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of Acquiror or Merger Sub.

(f)Neither Acquiror nor Merger Sub has made a request for an advance tax ruling, request for technical advice, a request for a change of any method of accounting or any similar request that is in progress or pending with any Governmental Authority with respect to any Taxes.

(g)Acquiror and Merger Sub are in material compliance with all escheat and unclaimed property laws. Neither Acquiror nor Merger Sub has incurred any material Taxes resulting from any action taken outside of the ordinary course of business since the date of the most recent balance sheet included in the Company Financial Statements.

(h)Acquiror and Merger Sub have each used at all times during their existence the accrual method of accounting for income Tax purposes.

(i)Neither Acquiror nor Merger Sub is a party to any Tax indemnification or Tax receivable, sharing, allocation or similar agreement (other than Ordinary Course Agreements).

(j)Neither Acquiror nor Merger Sub (i) is liable for Taxes of any other Person (other than Acquiror or Merger Sub) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts entered into in the ordinary course of business not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes.

 

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(k)No written claim has been made by any Governmental Authority where Acquiror or Merger Sub does not file Tax Returns that it is or may be subject to Tax in that jurisdiction.

(l)Neither Acquiror nor Merger Sub has ever had a permanent establishment in any country other than the country of its organization, or is subject to income Tax in a jurisdiction outside the country of its organization.

(m)Neither Acquiror nor Merger Sub has participated in a “reportable transaction” within the meaning of Treasury Regulation 1.6011-4(b) (or any corresponding or similar provision of state, local or non-U.S. Law).

(n)Neither Acquiror nor Merger Sub will be required to include any material amount in taxable income, exclude any material item of deduction or loss from taxable income, or make any adjustment under Section 481 of the Code (or any similar provision of state, local or foreign Law) for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) installment sale, excess loss account or deferred intercompany transaction described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Law) or open transaction disposition made prior to the Closing, (ii) prepaid amount received or deferred revenue realized, accrued, received or recognized prior to the Closing, (iii) change in method of accounting for a taxable period ending on or prior to the Closing Date and to the Knowledge of Acquiror, the IRS has not proposed any such adjustment or change in accounting method, (iv) any agreement entered into by or on behalf of Acquiror or Merger Sub with any Governmental Authority, including a “closing agreement” described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) executed prior to the Closing or (v) by reason of Section 965(a) of the Code or election pursuant to Section 965(h) of the Code (or any similar provision of state, local or foreign Law).

(o)Neither Acquiror nor Merger Sub has deferred the employer’s share of any “applicable employment taxes” under Section 2302 of the CARES Act, failed to properly comply in all material respects with and duly account for all credits received under Sections 7001 through 7005 of the FFCRA and Section 2301 of the CARES Act, or sought, or intends to seek, a covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)).

(p)Neither Acquiror nor Merger Sub has taken or agreed to take any action, or knows of any fact, agreement, plan or other circumstance, that could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

(q)The representations and warranties set forth in this Section 6.15 shall constitute the sole and exclusive representations and warranties made by the Acquiror and Merger Sub with respect to Taxes.

Section 6.16.Business Activities.

(a)Since formation, neither Acquiror nor Merger Sub has conducted any business activities other than activities related to Acquiror’s initial public offering or directed toward the accomplishment of a Business Combination. Except as set forth in Acquiror’s

 

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Governing Documents or as otherwise contemplated by this Agreement or the Ancillary Agreements and the transactions contemplated hereby and thereby, there is no agreement, commitment, or Governmental Order binding upon Acquiror or Merger Sub or to which Acquiror or Merger Sub is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of Acquiror or Merger Sub or any acquisition of property by Acquiror or Merger Sub or the conduct of business by Acquiror or Merger Sub as currently conducted or as contemplated to be conducted as of the Closing, other than such effects, individually or in the aggregate, which have not been and would not reasonably be expected to be material to Acquiror or Merger Sub.

(b)Except for Merger Sub and the transactions contemplated by this Agreement, the Trust Agreement and the Ancillary Agreements, Acquiror does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity. Except for this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, Acquiror does not have any material interests, rights, obligations or liabilities with respect to, and is not party to or bound by, and does not have its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or would reasonably be interpreted as constituting, a Business Combination. Except for the transactions contemplated by this Agreement, the Trust Agreement and the Ancillary Agreements, Merger Sub does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity.

(c)Merger Sub was formed solely for the purpose of effecting the transactions contemplated by this Agreement and has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated hereby and has no, and at all times prior to the Effective Time, except as expressly contemplated by this Agreement, the Ancillary Agreements and the other documents and transactions contemplated hereby and thereby, will have no, assets, liabilities or obligations of any kind or nature whatsoever other than those incident to its formation.

(d)As of the date hereof and except for this Agreement, the Ancillary Agreements and the other documents and transactions contemplated hereby and thereby (including with respect to expenses and fees incurred in connection therewith), neither Acquiror nor Merger Sub are party to any Contract with any other Person that would require payments by Acquiror or any of its Subsidiaries after the date hereof in excess of one hundred thousand Dollars ($100,000) in the aggregate with respect to any individual Contract, other than Acquiror Transaction Expenses. As of the date of this Agreement, there are no amounts outstanding under any Working Capital Loans.

Section 6.17.Registration Statement and Proxy Statement. On the effective date of the Registration Statement, the Registration Statement and, when first filed in accordance with Rule 424(b) and/or pursuant to Section 14A of the Exchange Act, the Proxy Statement and the Registration Statement (or any amendment or supplement thereto), shall comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act. On the effective date of the Registration Statement, the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or

 

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necessary in order to make the statements therein not misleading. On the date of any filing pursuant to Rule 424(b) and/or Section 14A of the Exchange Act, the date the Proxy Statement is first mailed to the Acquiror Stockholders, and at the time of the Acquiror Stockholders’ Meeting, the Proxy Statement and the Registration Statement (together with any amendments or supplements thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that Acquiror makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Proxy Statement in reliance upon and in conformity with information furnished in writing to Acquiror by or on behalf of the Company or its Subsidiaries specifically for inclusion in the Registration Statement or the Proxy Statement.

Section 6.18.No Outside Reliance. Notwithstanding anything contained in this Article VI or any other provision hereof, each of Acquiror and Merger Sub, and any of their respective directors, officers, managers, employees, stockholders, partners, members or representatives acknowledge and agree that any cost estimates, financial or other projections or other predications that may be contained or referred to in the Company Disclosure Letter or elsewhere, as well as any information, documents or other materials (including any material made available in any “data room” (whether or not accessed by Acquiror) or reviewed by Acquiror pursuant to the Confidentiality Agreement) or management presentations that have been or shall hereafter be provided to Acquiror or any of its Affiliates or other Representatives are not and will not be deemed representations or warranties of the Company, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in Article V of this Agreement. Except as expressly set forth in this Agreement, Acquiror understands and agrees that any assets, properties and business of the Company and its Subsidiaries are furnished “as is”, “where is” and subject to and except as otherwise provided in the representations and warranties contained in Article V, with all faults and without any other representation or warranty of any nature whatsoever. Neither Acquiror nor Merger Sub is relying on any statement, representation or warranty, oral or written, express or implied, made by the Company or any of its Representatives, except as expressly set forth in Article VI (as modified by the Company Disclosure Letter) or in any certificate delivered by the Company pursuant to this Agreement. Notwithstanding the foregoing, nothing in this Section 6.18 shall limit Acquiror’s remedies with respect to claims of fraud, with respect to the representations or warranties set forth in this Article VI.

Section 6.19.No Additional Representation or Warranties. Except as provided in this Article VI, neither Acquiror nor Merger Sub nor any their respective Affiliates, nor any of their respective Representatives has made, or is making, any representation or warranty whatsoever to the Company or its Affiliates and no such party shall be liable in respect of the accuracy or completeness of any information provided or made available to the Company or its Affiliates. Without limiting the foregoing, the Company acknowledges that the Company and its advisors have made their own investigation of Acquiror and Merger Sub.

 

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Article VII
COVENANTS OF THE COMPANY

Section 7.1.Conduct of Business. From the date of this Agreement through the earlier of the Closing or valid termination of this Agreement pursuant to Article XI (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Ancillary Agreements, as required by Law or as consented to by Acquiror in writing (which consent shall not be unreasonably conditioned, withheld or delayed), use reasonable best efforts to operate the business of the Company and its Subsidiaries in the ordinary course of business consistent with past practice, retain the officers of the Company and its Subsidiaries as of the date hereof, and preserve the Company’s and its Subsidiaries’ relationships with the Top Customers and Top Suppliers; provided, that, notwithstanding anything to the contrary in this Agreement, the Company or any of its Subsidiaries may take any action, including the establishment of any (or maintenance of any existing) policy, procedure or protocol, in order to respond to the impact of a Contagion Event; provided further, in each case, that (A) such actions are reasonably necessary, taken in good faith and taken to preserve the continuity of the business of the Company and its Subsidiaries and/or the health and safety of their respective employees, and (B) the Company shall, to the extent reasonably practicable, inform Acquiror of any such actions prior to the taking thereof and shall consider in good faith any suggestions or modifications from Acquiror with respect thereto. Without limiting the generality of the foregoing, except as set forth on Section 7.1 of the Company Disclosure Letter or as consented to by Acquiror in writing (which consent shall not be unreasonably conditioned, withheld or delayed, except that, with respect to clauses (a) through (d), (h), (i), (j), (l), (m), (p), and (r) Acquiror may withhold its consent in its sole discretion) the Company shall not, and the Company shall cause its Subsidiaries not to, except as otherwise explicitly contemplated by this Agreement or the Ancillary Agreements or as required by Law during the Interim Period:

(a)change or amend the Governing Documents (other than in connection with Section 7.1(l)) of the Company or any of the Company’s Subsidiaries or form or cause to be formed any new Subsidiary of the Company;

(b)make or declare any dividend or distribution to the stockholders of the Company or make any other dividends or distributions in respect of any of the Equity Interests of the Company or any of its Subsidiaries, other than dividends or distributions between or among the Company and any of its wholly owned Subsidiaries;

(c)split, combine, reclassify, recapitalize or otherwise amend any terms of any shares or series of the Company’s or any of its Subsidiaries’ Equity Interests, except for any such transaction by a wholly owned Subsidiary of the Company that remains a wholly owned Subsidiary of the Company after consummation of such transaction;

(d)purchase, repurchase, redeem or otherwise acquire any issued and outstanding Equity Interests of the Company or its Subsidiaries, except for (i) the acquisition by the Company or any of its Subsidiaries of any Equity Interests of the Company or its Subsidiaries in connection with the forfeiture or cancellation of such interests, in each case for no consideration other than a refund by the Company or any of its Subsidiaries, as applicable, of any purchase price or consideration paid to the Company or such Subsidiary (or such amount that does not exceed the

 

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then-current fair market values of such Equity Interests) to receive such Equity Interests, (ii) transactions between the Company and any wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company or (iii) the withholding of shares to satisfy net settlement or Tax obligations with respect to existing equity awards in accordance with the terms of such equity awards;

(e)enter into, modify in any material respect or terminate (other than expiration in accordance with its terms) any Material Contract, in each case, other than in the ordinary course of business consistent with past practice;

(f)sell, assign, transfer, convey, lease or otherwise dispose of any material tangible assets or properties of the Company or its Subsidiaries, except for (i) dispositions of obsolete or worthless equipment, (ii) transactions among the Company and its wholly owned Subsidiaries or among its wholly owned Subsidiaries, and (iii) sales of products to customers in the ordinary course of business consistent with past practice;

(g)acquire any ownership interest in any real property;

(h)except as otherwise required by the terms of any Company Benefit Plans or any Material Contract as in effect on the date hereof, (i) grant any severance, retention, change in control or termination or similar pay, except in connection with the promotion, hiring or termination of employment of any non-officer employee of the Company or its Subsidiaries with an annual base salary or wage rate below two hundred and twenty thousand Dollars ($220,000) in the ordinary course of business consistent with past practice, (ii) hire, promote, demote or terminate the employment of any officers, directors or employees with an annual base salary or wage rate of two hundred and twenty thousand Dollars ($220,000) or above other than terminations of employment for cause or due to death or disability, (iii) terminate, adopt, enter into or materially amend any Company Benefit Plan, (iv) increase the compensation or bonus opportunity of any employee, officer, director or other individual service provider, except in the ordinary course of business consistent with past practice with respect to any non-officer employee of the Company or its Subsidiaries with an annual base salary or wage rate below two hundred and twenty thousand Dollars ($220,000), (v) establish any trust or take any other action to secure the payment of any compensation payable by the Company or any of the Company’s Subsidiaries for the benefit of any employee or other service provider of the Company or its Subsidiaries, or (vi) take any action to accelerate the time of payment or vesting of any compensation or benefit payable by the Company or any of the Company’s Subsidiaries, except in the ordinary course of business consistent with past practice;

(i)acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all or a material portion of the assets of, any corporation, company, limited liability company, partnership, association, joint venture or other business organization or division thereof;

(j)(i) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Subsidiary of the Company or otherwise incur or assume any Indebtedness, or (ii) guarantee any Indebtedness of another Person, except (x) as issued or incurred between the Company and any of its wholly owned Subsidiaries or between any of such

 

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wholly owned Subsidiaries or (y) Indebtedness with an original principal balance of not greater than fifty million Dollars ($50,000,000), individually or in the aggregate;

(k)(i) make, change or revoke any election in respect of material Taxes, (ii) amend, modify or otherwise change any filed material Tax Return, (iii) prepare or file any material Tax Return in a manner inconsistent with past practice (except to the extent required by applicable Law), (iv) fail to pay any material amount of Tax when due (including any material estimated Tax payments), (v) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (vi) enter into any closing agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (in each case, other than Ordinary Course Agreements), (vii) settle any claim or assessment in respect of material Taxes, (viii) surrender or allow to expire any right to claim a refund of material Taxes or (ix) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute that would give rise to any claim or assessment of Taxes;

(l)(i) issue any additional Equity Interests of the Company or any of its Subsidiaries or securities exercisable for or convertible or exchangeable into Equity Interests of the Company or any of its Subsidiaries, other than (A) the issuance of Company Common Stock upon the exercise of Company Options, the vesting of Company Restricted Stock Units or Company Restricted Stock Awards under the Company Incentive Plan and the applicable award agreement, (B) the consummation of the Company Convertible Notes Conversion or the Warrant Settlement (in each case, outstanding on the date of this Agreement, in accordance with their terms as in effect as of the date of this Agreement) or (C) in connection with an Excluded Financing that will not exceed $50 million in the aggregate and will not result in the imposition of any material restriction on the Company (provided that, with respect to any such Excluded Financing, the Company will update Acquiror on a periodic basis of the material terms of such Excluded Financing, including pricing and expected financing amount, and furnish such information or documentation as may be reasonably requested by Acquiror in connection therewith), or (ii) grant any Company Awards or other equity or equity-based compensation;

(m)adopt a plan of, or otherwise enter into or effect a, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or its Subsidiaries (other than the Merger);

(n)waive, release, settle, compromise or otherwise resolve any inquiry, investigation, claim, Action, litigation or other Legal Proceedings, except where such waivers, releases, settlements or compromises involve only the payment of monetary damages (excluding monetary damages that are fully covered by the Company’s insurance policies) in an amount less than two hundred and fifty thousand Dollars ($250,000) in the aggregate and that do not involve the imposition of material conditions on the businesses of the Company or any of its Subsidiaries;

(o)(i) grant to or acquire from, or agree to grant to or acquire from, any Person rights to any Intellectual Property that is material to the Company and its Subsidiaries, (ii) dispose of, abandon or permit to lapse any rights to any Company Registered Intellectual Property or (iii) disclose any material Trade Secret of the Company or any of its Subsidiaries to any Person who has not entered into a written confidentiality agreement and is not otherwise subject to

 

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confidentiality obligations, in the case of each of clauses (i), (ii) and (iii), except in the ordinary course of business consistent with past practice;

(p)negotiate, enter into, modify, amend, renew or extend any collective bargaining agreement or similar labor agreement, other than as required by applicable Law, or recognize or certify any labor union, labor organization, or group of employees of the Company or its Subsidiaries as the bargaining representative for any employees of the Company or its Subsidiaries;

(q)terminate without replacement or fail to use reasonable efforts to maintain any License material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;

(r)limit the right of the Company or any of the Company’s Subsidiaries to engage in any line of business or in any geographic area, to develop, market or sell products or services, or to compete with any Person; or

(s)enter into any Contract to do or take any action prohibited under this Section 7.1.

Section 7.2.Inspection. Subject to confidentiality obligations (whether contractual, imposed by applicable Law or otherwise) that may be applicable to information furnished to the Company or any of the Company’s Subsidiaries by third parties that may be in the Company’s or any of its Subsidiaries’ possession from time to time, and except for any information that is subject to attorney-client privilege (provided that, to the extent reasonably possible, the parties shall cooperate in good faith to permit disclosure of such information in a manner that preserves such privilege or compliance with such confidentiality obligation), and to the extent permitted by applicable Law, including in light of any Contagion Event, (a) the Company shall, and shall cause its Subsidiaries to, afford to Acquiror and its accountants, counsel and other Representatives reasonable access during the Interim Period (including for the purpose of coordinating transition planning for employees), during normal business hours and with reasonable advance notice, in such manner as to not materially interfere with the ordinary course of business of the Company and its Subsidiaries, to all of their respective properties, books, Contracts, commitments, Tax Returns, records and appropriate officers and employees of the Company and its Subsidiaries, and shall furnish Acquiror and such Representatives with all financial and operating data and other information concerning the affairs of the Company and its Subsidiaries as Acquiror and such Representatives may reasonably request for the purpose of consummating the transactions contemplated hereby; provided, that such access shall not include any unreasonably invasive or intrusive investigations or other testing, sampling or analysis of any properties, facilities or equipment of the Company or its Subsidiaries without the prior written consent of the Company, and (b) the Company shall, and shall cause its Subsidiaries to, provide to Acquiror and, if applicable, its accountants, counsel or other Representatives, (i) such information and such other materials and resources relating to any material Legal Proceeding initiated, pending or threatened in writing during the Interim Period, as Acquiror or such Representative may reasonably request, (ii) prompt written notice of any material status updates in connection with any such Legal Proceedings and (iii) copies of any communications sent or received by the Company or its Subsidiaries in connection with such Legal Proceedings. No information received by Acquiror

 

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pursuant to this Section 7.2 shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the Company hereunder, and no such information shall be deemed to change, supplement or amend any schedule hereto.

Section 7.3.Preparation and Delivery of Additional Company Financial Statements.

(a)As soon as reasonably practicable (i) following the date of this Agreement (and in any event prior to the filing of the Registration Statement), the Company shall deliver to Acquiror, in draft form, the auditor’s report on the Audited Financial Statements (provided that the Audited Financial Statements shall not be required to include a signed audit opinion until the initial filing of the Registration Statement) and (ii) after the end of each applicable fiscal period (and in any event within forty-five (45) days thereafter in the case of unaudited financial statements and ninety (90) days thereafter in the case of audited financial statements) during the Interim Period, the Company shall deliver to Acquiror the audited (in the case of any year-end fiscal period) or unaudited (in the case of an interim quarterly fiscal period) condensed consolidated balance sheets of the Company and its Subsidiaries as of the end of the last day of such period and as of the corresponding period from the previous fiscal year and the related audited (in the case of any year-end fiscal period) or unaudited (in the case of an interim quarterly fiscal period) statements of net loss, comprehensive loss, temporary equity and stockholders’ deficit, and cash flows of the Company and its Subsidiaries for such period and for the corresponding period from the previous fiscal year that are required to be included in the Registration Statement or Proxy Statement, in each case, which shall comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the financial statements to be delivered pursuant to clauses (i) and (ii), collectively, the “Additional Required Financial Statements”).

(b)Upon delivery of Additional Required Financial Statements, the representations and warranties set forth in Section 5.8 shall be deemed to apply to such Additional Required Financial Statements in the same manner as the Company Financial Statements, mutatis mutandis, with the same force and effect as if made as of the date of this Agreement.

Section 7.4.Affiliate Agreements. At or prior to the Closing, the Company shall terminate or settle, or cause to be terminated or settled, without further liability to Acquiror, the Company or any of the Company’s Subsidiaries, all Affiliate Agreements (other than those set forth on Section 7.4 of the Company Disclosure Letter) and obtain evidence reasonably satisfactory to Acquiror that such Affiliate Agreements have been terminated or settled, effective prior to the Closing.

Section 7.5.Acquisition Proposals; Alternative Transactions. From the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article XI, the Company and its Subsidiaries shall not, and the Company shall instruct and use its reasonable best efforts to cause its Representatives not to, (a) initiate any negotiations with any Person with respect to, or provide any non-public information or data concerning the Company or any of the Company’s Subsidiaries to any Person relating to, an Acquisition Proposal or Alternative Transaction or afford to any Person access to the business, properties, assets or personnel of the Company or any of the Company’s Subsidiaries in connection with an Acquisition Proposal or Alternative Transaction, (b) enter into any acquisition agreement, merger agreement or similar

 

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definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement relating to an Acquisition Proposal or Alternative Transaction, (c) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover laws of any state in connection with an Acquisition Proposal or Alternative Transaction, or (d) otherwise solicit, encourage or knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal or Alternative Transaction. The Company agrees to (A) notify Acquiror promptly upon receipt of any Acquisition Proposal or any offer or proposal with respect to an Alternative Transaction by the Company or any of its Subsidiaries and to describe the material terms and conditions of any such Acquisition Proposal or Alternative Transaction in reasonable detail (including, for the avoidance of doubt, the identity of the Persons making such Acquisition Proposal or Alternative Transaction) and (B) keep Acquiror reasonably informed on a current basis of any modifications to such offer or information. Notwithstanding anything to the contrary in this Agreement, the Company and its Subsidiaries and their respective representatives shall not be restricted pursuant to the foregoing with respect to any action explicitly contemplated by this Agreement and the other documents contemplated hereby, including with respect to the PIPE Investment.

Section 7.6.No Acquiror Stock Transactions. From and after the date hereof until the Effective Time, except as otherwise contemplated by this Agreement, neither the Company nor any of its Subsidiaries or Affiliates shall, directly or indirectly, engage in any transactions involving the securities of Acquiror without the prior written consent of Acquiror. The Company shall cause its Subsidiaries and shall use commercially reasonable efforts to require each of its controlling Affiliates to comply with the foregoing sentence.

Section 7.7.Proxy Solicitation; Other Actions.

(a)The Company shall be available to, and the Company and its Subsidiaries shall use reasonable best efforts to make their officers and employees available to, in each case, during normal business hours and upon reasonable advance notice, Acquiror and its counsel in connection with the drafting of the Registration Statement and the Proxy Statement and responding in a timely manner to comments on the Registration Statement and Proxy Statement from the SEC. Without limiting the generality of the foregoing, the Company shall reasonably cooperate with Acquiror in connection with the preparation for inclusion in the Registration Statement and Proxy Statement of any required pro forma financial statements in compliance with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC).

(b)From and after the date on which the Registration Statement is declared effective, the Company shall give Acquiror prompt written notice of any action taken or not taken by the Company or any of its Subsidiaries or of any development regarding the Company or any of its Subsidiaries, in any such case that is known by the Company, that would cause the Registration Statement or the Proxy Statement to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements (with respect to the Proxy Statement, in light of the circumstances under which they were made), not misleading; provided that if any such action shall be taken or fail to be taken or such development shall otherwise occur, Acquiror and the Company shall cooperate fully to cause to promptly be made an amendment or supplement to the Registration Statement or, to the extent required by Federal Securities Laws, a post-effective amendment to the Proxy Statement or the Registration Statement, such that the

 

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Registration Statement and the Proxy Statement would no longer contain an untrue statement of a material fact or omit to state to state a material fact necessary in order to make the statements (with respect to the Proxy Statement, in light of the circumstances under which they were made), not misleading; provided, however, that no information received by Acquiror pursuant to this Section 7.7(b) shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the Company hereunder, and no such information shall be deemed to change, supplement or amend any schedule hereto.

Section 7.8.Tax Matters.

(a)Each of Acquiror, the Company, and their respective Subsidiaries shall use commercially reasonable efforts to cause the Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code for U.S. federal income tax purposes. None of Acquiror, the Company or any of their respective Subsidiaries shall take any action (or, to the extent within their control, permit any Affiliate to take any action) that could reasonably be expected to preclude the foregoing. Each of Acquiror and the Company shall file all income tax returns consistent with the foregoing except (a) as otherwise required by (i) a change in Law after the date of this Agreement or (ii) a final “determination” (within the meaning of Section 1313(a)(1) of the Code or any comparable provision of state or local Law), or (b) with the consent of the other parties to this Agreement (such consent not to be unreasonably withheld, conditioned or delayed).

(b)All transfer, documentary, sales, use, value added, excise, stock transfer, stamp, recording, registration and any similar Taxes and fees, including any penalties and interest thereon, that are required to be paid under Tax Laws in connection with the transactions contemplated by this Agreement (“Transfer Taxes”) shall be borne and paid by Acquiror. For the avoidance of doubt, Transfer Taxes shall not include any federal, state, local or non-U.S. Taxes measured by or based upon income or gains. The applicable parties shall cooperate in good faith in filing such forms and documents as may be necessary and to obtain any exemption or refund of any such Transfer Tax and to minimize the amount of any Transfer Taxes payable in connection with the Merger.

(c)The parties hereto shall, and shall cause their controlled Affiliates, to (i) cooperate in order to facilitate the issuance of any opinions relating to Tax matters that the SEC requires to be filed in connection with the Registration Statement, and (ii) deliver to Latham (in the case of Tax matters relating to Acquiror or its stockholders) and DLA (in the case of Tax matters relating to the Company or its stockholders), in each case, to the extent requested by such counsel, a duly executed certificate dated as of the date requested by such counsel, containing such representations, warranties and covenants as shall be reasonably necessary or appropriate to enable such counsel to render any such opinion.

Article VIII
COVENANTS OF ACQUIROR

Section 8.1.Employee Matters.

(a)Equity Plans. Effective as of the Closing Date, Acquiror shall approve and adopt an incentive equity plan substantially in the form attached hereto as Exhibit F (with such

 

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changes as may be agreed in writing by Acquiror and the Company) (the “Incentive Equity Plan”), an Employee Stock Purchase Plan substantially in the form attached hereto as Exhibit G (with such changes as may be agreed in writing by Acquiror and the Company) (the “Purchase Plan”) and a chief executive officer equity incentive plan in a form reasonably acceptable to each of the Company and Acquiror (the “Chief Executive Officer Equity Incentive Plan”), subject, in each case, to approval by Acquiror Stockholders at the Acquiror Stockholders’ Meeting. The Company, on the one hand, and Acquiror, on the other hand, may each propose to the other party further edits to the Incentive Equity Plan, the Purchase Plan and the Chief Executive Officer Equity Incentive Plan based on recommendations from the Company’s compensation consultant or the Compensation Study (as defined below) and, in the case of the Company, the Board of Directors of the Company, which, after consideration and approval by such other party, which approval shall not to be unreasonably withheld or delayed, shall be incorporated into the Incentive Equity Plan, Purchase Plan and Chief Executive Officer Equity Incentive Plan, as applicable.

(b)Within two (2) Business Days following the expiration of the sixty (60) day period following the date Acquiror has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company, Acquiror shall file an effective registration statement on Form S‑8 (or other applicable form) with respect to the Acquiror Common Stock issuable under the Incentive Equity Plan, the Purchase Plan and the Chief Executive Officer Equity Incentive Plan and Acquiror shall use reasonable best efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the Incentive Equity Plan, the Purchase Plan and the Chief Executive Officer Equity Incentive Plan remain outstanding.

(c)The parties shall, prior to the Closing, engage a reputable third party executive compensation consultant reasonably acceptable to Acquiror and the Company to conduct a study to determine an appropriate market-based compensation package for the executive officers commensurate with their anticipated roles at Acquiror and/or any of its Subsidiaries, including the Company, immediately following the Closing (the “Compensation Study”). Acquiror shall, upon the Closing, provide each executive officer who is then employed by Acquiror or any of its Subsidiaries, including the Company, with a market-based compensation package commensurate with such individual’s role with Acquiror and/or any of its Subsidiaries.

(d)No Third-Party Beneficiaries. Notwithstanding anything herein to the contrary, each of the parties to this Agreement acknowledges and agrees that all provisions contained in this Section 8.1 are included for the sole benefit of Acquiror, the Company and the Surviving Company, and that nothing in this Agreement, whether express or implied, (i) shall be construed to establish, amend, or modify any employee benefit plan, program, agreement or arrangement, (ii) shall limit the right of Acquiror, the Company, the Surviving Company or their respective Affiliates to amend, terminate or otherwise modify any Company Benefit Plan or other employee benefit plan, agreement or other arrangement following the Closing Date or (iii) shall confer upon any Person who is not a party to this Agreement (including any stockholder, any current or former director, manager, officer, employee or independent contractor of the Company or any of its Subsidiaries, or any participant in any Company Benefit Plan or other employee benefit plan, agreement or arrangement (or any dependent or beneficiary thereof)), any right to continued or resumed employment or recall, any right to compensation or benefits, or any third-party beneficiary or other right of any kind or nature whatsoever.

 

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Section 8.2.Trust Account Proceeds and Related Available Equity.

(a)If (i) the amount of cash available in the Trust Account immediately prior to the Effective Time and after (x) deducting the amount required to satisfy the Acquiror Share Redemption Amount, (y) the payment of any deferred underwriting commissions being held in the Trust Account and (z) the payment of the Acquiror Transaction Expenses, as contemplated by Section 12.6, plus (ii) the PIPE Investment Amount and the Forward Purchase Amount, in each case, as actually received by Acquiror prior to or substantially concurrently with the Closing (the sum of (i) and (ii), the “Available Acquiror Cash”) is equal to or greater than one hundred seventy-five million Dollars ($175,000,000) (the “Minimum Available Acquiror Cash Amount”), then the condition set forth in Section 10.3(c) shall be satisfied.

(b)Upon satisfaction or waiver of the conditions set forth in Article X and provision of notice thereof to the Trustee (which notice Acquiror shall provide to the Trustee in accordance with the terms of the Trust Agreement), (i) in accordance with and pursuant to the Trust Agreement, at the Closing, Acquiror (A) shall cause any documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (B) shall use its reasonable best efforts to cause the Trustee to, and the Trustee shall thereupon be obligated to (1) pay as and when due all amounts payable to Acquiror Stockholders pursuant to the Acquiror Share Redemptions, and (2) pay all remaining amounts then available in the Trust Account to Acquiror for immediate use, subject to this Agreement and the Trust Agreement, and (ii) thereafter, the Trust Account shall terminate, except as otherwise provided therein.

Section 8.3.Listing. From the date hereof through the Effective Time, Acquiror shall use reasonable best efforts to ensure Acquiror remains listed as a public company on NASDAQ, and shall prepare and submit to NASDAQ a listing application in connection with the transactions contemplated by this Agreement, if required under NASDAQ rules, covering the Registration Statement Securities, and shall use reasonable best efforts to obtain approval for the listing of such shares of Acquiror Class A Common Stock on NASDAQ and the change of Acquiror’s trading ticker on NASDAQ to a ticker mutually agreed by the parties, in each case, as promptly as reasonably practicable after the date of this Agreement, and in any event as of immediately following the Effective Time, and the Company shall, and shall cause its Subsidiaries to, reasonably cooperate with Acquiror with respect to such listing and change.

Section 8.4.No Solicitation by Acquiror. From the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article XI, Acquiror shall not, and shall cause its Subsidiaries not to, and Acquiror shall instruct its and their Representatives acting on its and their behalf, not to, (a) make any proposal or offer that constitutes a Business Combination Proposal, (b) initiate any discussions or negotiations with any Person with respect to a Business Combination Proposal or (c) enter into any acquisition agreement, business combination, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement relating to a Business Combination Proposal, in each case, other than to or with the Company and its Representatives. From and after the date hereof, Acquiror shall, and shall instruct its officers and directors to, and Acquiror shall instruct and cause its Representatives acting on its behalf, and its Subsidiaries and their respective Representatives (acting on their behalf) to, immediately cease

 

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and terminate all discussions and negotiations with any Persons that may be ongoing with respect to a Business Combination Proposal (other than the Company and its Representatives).

Section 8.5.Acquiror Conduct of Business.

(a)During the Interim Period, Acquiror shall, and shall cause Merger Sub to, except as explicitly contemplated by this Agreement (including as contemplated by the PIPE Investment) or the Ancillary Agreements, or as required by Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld or delayed), use reasonable best efforts to operate its business in the ordinary course consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld or delayed), Acquiror shall not, and Acquiror shall cause Merger Sub not to, except as otherwise contemplated by this Agreement (including as explicitly contemplated by the PIPE Investment), the Ancillary Agreements or the Forward Purchase Agreement or as required by applicable Law:

(i)seek any approval from the Acquiror Stockholders to change, modify or amend the Trust Agreement or the Governing Documents of Acquiror or Merger Sub, except as contemplated by the Transaction Proposals;

(ii)except as contemplated by the Transaction Proposals, (A) make or declare any dividend or distribution to the Acquiror Stockholders or make any other distributions in respect of any of Acquiror’s or Merger Sub’s Equity Interests, (B) split, combine, reclassify or otherwise amend any terms of any shares or series of Acquiror’s or Merger Sub’s Equity Interests, or (C) purchase, repurchase, redeem or otherwise acquire any issued and outstanding Equity Interests of Acquiror or Merger Sub, other than a redemption of shares of Acquiror Class A Common Stock required to be made as part of the Acquiror Share Redemptions;

(iii)(A) make, change or revoke any material election in respect of material Taxes, (B) amend, modify or otherwise change any filed material Tax Return, (C) prepare or file any material Tax Return in a manner inconsistent with past practice (except to the extent required by applicable Law), (D) fail to pay any material amount of Tax when due (including any material estimated Tax payments), (E) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (F) enter into any closing agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (in each case, other than Ordinary Course Agreements), (G) settle any claim or assessment in respect of material Taxes, (H) surrender or allow to expire any right to claim a refund of material Taxes; or (I) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute that would give rise to any claim or assessment of Taxes;

(iv)other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror or Merger Sub (including, for the avoidance of doubt, (x) the Sponsor

 

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and (y) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of five percent (5%) or greater);

(v)incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Acquiror or Merger Sub or guaranty any debt securities of another Person, other than any indebtedness for borrowed money or guarantee incurred (A) in the ordinary course of business consistent with past practice, (B) between Acquiror or Merger Sub or (C) incurred under any Working Capital Loans;

(vi)incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material liabilities, debts or obligations, other than fees and expenses incurred in support of the ordinary course operations of Acquiror (which the parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business) or incident to the transactions contemplated by this Agreement and the Ancillary Agreements, including Acquiror Transaction Expenses;

(vii)waive, release, compromise, settle or satisfy any (A) pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or (B) other Legal Proceeding;

(viii)other than with respect to the PIPE Investment or the sale of the Forward Purchase Securities concurrently with Closing, (A) issue any Acquiror Securities or Equity Interests convertible, exchangeable or exercisable into or for Acquiror Securities, other than the issuance of the Aggregate Merger Consideration, (B) grant any options, warrants or other equity-based awards with respect to Acquiror Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any Acquiror Private Warrant or Acquiror Public Warrant or the Acquiror Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or

(ix)enter into any Contract to do or take any action prohibited under this Section 8.5.

(b)During the Interim Period, Acquiror shall, and shall cause its Subsidiaries (including Merger Sub) to, comply with, and continue performing under, as applicable, Acquiror’s Governing Documents, the Trust Agreement and all other material Contracts to which Acquiror or its Subsidiaries may be a party.

Section 8.6.Post-Closing Directors and Officers of Acquiror.

(a)Subject to the terms of Acquiror’s Governing Documents, Acquiror shall take all such action within its power as may be necessary or appropriate such that immediately following the Effective Time the Board of Directors of Acquiror shall consist of the individuals set forth on Section 8.6(a) of the Acquiror Disclosure Letter.

(b)The Company shall ensure that a sufficient number of its designees pursuant to Section 8.6(a) qualify as independent directors such that, when taken together with other

 

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independent directors appointed pursuant to Section 8.6(a), the Board of Directors of Acquiror shall have a majority of “independent” directors for the purposes of NASDAQ, each of whom shall serve in such capacity in accordance with the terms of Acquiror’s Governing Documents following the Effective Time.

(c)The initial officers of Acquiror shall be as set forth on Section 2.6(b) of the Company Disclosure Letter, who shall serve in such capacity in accordance with the terms of Acquiror’s Governing Documents following the Effective Time.

Section 8.7.Indemnification and Insurance.

(a)From and after the Effective Time, Acquiror agrees that it shall indemnify and hold harmless each present and former director and officer of (x) the Company and each of its Subsidiaries (in each case, solely to the extent acting in their capacity as such) (the “Company Indemnified Parties”) and (y) Acquiror and each of its Subsidiaries (together with the Company Indemnified Parties, the “D&O Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Legal Proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company, Acquiror or their respective Subsidiaries, as the case may be, would have been permitted under applicable Law and its respective certificate of incorporation, certificate of formation, bylaws, limited liability company agreement or other organizational documents in effect on the date of this Agreement to indemnify such D&O Indemnified Parties (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, Acquiror shall, and shall cause its Subsidiaries to, (i) maintain for a period of not less than six (6) years from the Effective Time provisions in its Governing Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of Acquiror’s and its Subsidiaries’ (including the Company’s and its Subsidiaries’) former and current officers, directors and employees that are no less favorable to those Persons than the provisions of the Governing Documents of the Company, Acquiror or their respective Subsidiaries, as applicable, in each case, existing or occurring at or prior to the Effective Time, and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law. Acquiror shall assume, and be liable for, each of the covenants in this Section 8.7.

(b)For a period of six (6) years from the Effective Time, Acquiror shall maintain or cause to be maintained, as applicable, in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by Acquiror’s, the Company’s or their respective Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to Acquiror or its Representatives) on terms no less favorable than the terms of such current insurance, except that in no event shall Acquiror or the Surviving Company, as applicable, be required to pay an annual premium for such insurance in excess of three hundred percent (300%) of the aggregate annual premium payable by Acquiror or the Company, as applicable, for such insurance for the year ended December 31, 2020; provided, that (i) Acquiror may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six (6) year “tail” insurance policy containing terms not

 

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materially less favorable than the terms of such current insurance with respect to claims arising out of facts, events, acts or omissions existing or occurring at or prior to the Effective Time and (ii) if any such claim is asserted or made within such six (6) year period, any insurance required to be maintained under this Section 8.7 shall be continued in respect of such claim until the final disposition thereof.

(c)Notwithstanding anything contained in this Agreement to the contrary, this Section 8.7 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on Acquiror and all successors and assigns of Acquiror. In the event that Acquiror or any of its successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Acquiror shall ensure that proper provision shall be made so that the successors and assigns of Acquiror shall succeed to the obligations set forth in this Section 8.7.

(d)On the Closing Date, Acquiror shall enter into customary indemnification agreements reasonably satisfactory to each of the Company and Acquiror with the post-Closing directors and officers of Acquiror, which indemnification agreements shall continue to be effective following the Closing in accordance with their terms.

Section 8.8.Acquiror Public Filings. From the date hereof through the Effective Time, Acquiror will keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Securities Laws.

Section 8.9.PIPE Subscriptions; Forward Purchase Agreement. Unless otherwise approved in writing by the Company (which approval shall not be unreasonably withheld, conditioned or delayed), Acquiror shall not (other than changes that are solely ministerial and other non-economic de minimis changes) permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any replacements of, any of the Subscription Agreements or the Forward Purchase Agreement, in each case, other than any assignment or transfer contemplated therein or expressly permitted thereby (without any further amendment, modification or waiver to such assignment or transfer provision); provided, that, in the case of any such permitted assignment or transfer, the initial party to such Subscription Agreement or Forward Purchase Agreement, as applicable, remains bound by its obligations with respect thereto in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the purchase of shares of Acquiror Common Stock contemplated thereby. Subject to the immediately preceding sentence and in the event that all conditions in the Subscription Agreements and the Forward Purchase Agreement, as applicable, have been satisfied, Acquiror shall use its reasonable best efforts to take, or to cause to be taken, all actions required or necessary or that it otherwise deems to be proper or advisable to consummate the transactions contemplated by the Subscription Agreements and the Forward Purchase Agreement on the terms described therein, including using its reasonable best efforts to enforce its rights (a) under the Subscription Agreements to cause the PIPE Investors to pay to (or as directed by) Acquiror the applicable purchase price under each PIPE Investor’s applicable Subscription Agreement in accordance with its terms and (b) under the Forward Purchase Agreement to cause GSAM to pay Acquiror the applicable purchase price for the

 

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Forward Purchase Securities under the Forward Purchase Agreement in accordance with its terms. Without limiting the generality of the foregoing, Acquiror shall give the Company prompt written notice: (i) of the receipt of any request from a PIPE Investor for an amendment to any Subscription Agreement or from GSAM for any amendment to the Forward Purchase Agreement (other than changes that are solely ministerial and other non-economic de minimis changes); (ii) of any breach or default to the Knowledge of Acquiror (or any event or circumstance that, to the Knowledge of Acquiror, with or without notice, lapse of time or both, would give rise to any breach or default) by any party to any Subscription Agreement or the Forward Purchase Agreement; (iii) of the receipt by Acquiror of any written notice or other written communication with respect to any actual or potential threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation of a Subscription Agreement by a PIPE Investor or the Forward Purchase Agreement by GSAM; and (iv) if Acquiror does not expect to receive all or any portion of the applicable purchase price under any Subscription Agreement or the Forward Purchase Agreement, as applicable, in accordance with its terms.

Article IX
JOINT COVENANTS

Section 9.1.HSR Act; Other Filings.

(a)In connection with the transactions contemplated hereby, each of the Company and Acquiror shall (and, to the extent required, shall cause its Affiliates to) comply promptly but in no event later than ten (10) Business Days after the date hereof with the notification and reporting requirements of the HSR Act. Each of the Company and Acquiror shall substantially comply with any Antitrust Information or Document Request.

(b)Each of the Company and Acquiror shall (and, to the extent required, shall cause its Affiliates to) request early termination of any waiting period under the HSR Act and exercise its reasonable best efforts to (i) obtain termination or expiration of the waiting period under the HSR Act and (ii) prevent the entry, in any Legal Proceeding brought by an Antitrust Authority or any other Person, of any Governmental Order which would prohibit, make unlawful or materially delay the consummation of the transactions contemplated hereby.

(c)Acquiror and the Company shall cooperate in good faith with Governmental Authorities and undertake promptly any and all action required to complete lawfully the transactions contemplated hereby as soon as practicable (but in any event prior to the Agreement End Date) and any and all action necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any proceeding in any forum by or on behalf of any Governmental Authority or the issuance of any Governmental Order that would delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Merger, including, with the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), (i) proffering and consenting and/or agreeing to a Governmental Order or other agreement providing for (A) the sale, licensing or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of the Company or Acquiror or (B) the termination, amendment or assignment of existing relationships and contractual rights and obligations of the Company or Acquiror and (ii) promptly effecting the disposition, licensing or holding separate of assets or lines of business or the termination, amendment or assignment of

 

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existing relationships and contractual rights, in each case, at such time as may be necessary to permit the lawful consummation of the transactions contemplated hereby on or prior to the Agreement End Date.

(d)With respect to each of the above filings, and any other requests, inquiries, Actions or other proceedings by or from Governmental Authorities, each of the Company and Acquiror shall (and, to the extent required, shall cause its controlled Affiliates to) (i) use reasonable best efforts to obtain any necessary clearance, approval, consent, or Governmental Authorization under Laws prescribed or enforceable by any Governmental Authority for the transactions contemplated by this Agreement and to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement; and (ii) cooperate fully with each other with respect to such matters. To the extent not prohibited by Law, the Company shall promptly furnish to Acquiror, and Acquiror shall promptly furnish to the Company, copies of any notices or written communications received by such party or any of its Affiliates from any third party or any Governmental Authority with respect to the transactions contemplated hereby, and each party shall permit counsel to the other parties an opportunity to review in advance, and each party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such party and/or its Affiliates to any Governmental Authority concerning the transactions contemplated hereby; provided, that none of the parties shall extend any waiting period or comparable period under the HSR Act or enter into any Contract with any Governmental Authority without the written consent of the other parties. To the extent not prohibited by Law, the Company agrees to provide Acquiror and its counsel, and Acquiror agrees to provide the Company and its counsel, the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such party and/or any of its Affiliates or Representatives, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the transactions contemplated hereby.

(e)Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall require Acquiror or Merger Sub to (i) take, or cause to be taken, any action with respect to the Sponsor or any portfolio company, investment fund or other vehicle affiliated with or managed by, or investing on a parallel or co-investment basis with investment funds affiliated with or managed by, Energy Capital Partners Management, LP, ECP ControlCo, LLC or their respective Affiliates, including selling, divesting or otherwise disposing of, or conveying, licensing, holding separate or otherwise restricting or limiting its freedom of action with respect to, any assets, business, products, rights, licenses or investments, or interests therein, in each case other than with respect to the Acquiror and its Subsidiaries, or (ii) provide, or cause to be provided, nonpublic or other confidential financial or sensitive personally identifiable information of Sponsor, its Affiliates or its or their respective directors, officers, employees, managers or partners, or its or their respective control persons’ or direct or indirect equityholders’ and their respective directors’, officers’, employees’, managers’ or partners’ nonpublic or other confidential financial or sensitive personally identifiable information (in each case, other than such information which may be provided to a Governmental Authority on a confidential basis or in connection with any Antitrust Information or Document Requests, the Registration Statement or the Proxy Statement to the extent requested by the SEC, any other requests, inquiries, Actions or other proceedings by or from Governmental Authorities).

 

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(f)Each of Acquiror and the Company shall be responsible for and pay fifty percent (50%) of the filing fees payable to the Antitrust Authorities in connection with the transactions contemplated hereby.

Section 9.2.Preparation of Registration Statement and Proxy Statement; Acquiror Stockholders’ Meeting and Acquiror Stockholder Approval.

(a)Registration Statement and Proxy Statement.

(i)As promptly as practicable after the execution of this Agreement, (x) Acquiror and the Company shall jointly prepare and Acquiror shall file with the SEC a proxy statement relating to the Acquiror Stockholders’ Meeting and the Acquiror Share Redemption (such proxy statement, together with any exhibits, amendments or supplements thereto, the “Proxy Statement”) and (y) Acquiror shall prepare (with the Company’s reasonable cooperation, including causing its Subsidiaries and Representatives to cooperate) and file with the SEC the Registration Statement, in which the Proxy Statement will be included as a prospectus, in connection with the registration under the Securities Act of the shares of Acquiror Class A Common Stock to be issued under this Agreement (collectively, the “Registration Statement Securities”). Each of Acquiror and the Company shall use its reasonable best efforts to cause the Registration Statement and the Proxy Statement to comply with the rules and regulations promulgated by the SEC, to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the transactions contemplated hereby. Acquiror shall be responsible for the payment of all filing and other fees and expenses in connection with the preparation, filing and mailing of the Registration Statement and Proxy Statement, as applicable; provided, however, that in the event this Agreement is terminated in accordance with Article XI, the Company shall promptly reimburse Acquiror for 50% of all such filing fees and other fees and expenses incurred in connection with the preparation, filing and mailing of the Registration Statement and Proxy Statement, as applicable, prior to the time at which the Agreement is terminated. Acquiror also agrees to use its reasonable best efforts to obtain all necessary state Securities Laws or “Blue Sky” permits and approvals required to carry out the transactions contemplated hereby, and the Company shall furnish all information concerning the Company, its Subsidiaries and any of their respective members or stockholders as may be reasonably requested in connection with any such action. Each of Acquiror and the Company agrees to furnish to the other party all information concerning itself, its Subsidiaries, officers, directors, employees, managers and stockholders and such other matters as may be reasonably necessary or advisable or as may be reasonably requested in connection with the Registration Statement, the Proxy Statement, a Current Report on Form 8‑K pursuant to the Exchange Act in connection with the transactions contemplated by this Agreement, or any other statement, filing, notice or application made by or on behalf of Acquiror, the Company or their respective Subsidiaries to any regulatory authority (including NASDAQ) in connection with the Merger and the other transactions contemplated hereby (collectively, the “Offer Documents”). Acquiror will cause the Proxy Statement to be mailed to the Acquiror Stockholders promptly after the Registration Statement is declared effective under the Securities Act and the Proxy Statement is cleared of any comments under the Exchange Act.

 

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(ii)To the extent permitted by Law, Acquiror will advise the Company, reasonably promptly after Acquiror receives notice thereof, of the time when the Registration Statement has been declared effective or any supplement or amendment to the Registration Statement has been filed, of the issuance of any stop order or the suspension of the qualification of the Acquiror Common Stock for offering or sale in any jurisdiction, of the initiation or written threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or the Proxy Statement or for additional information. Each of Acquiror and the Company shall use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. To the extent permitted by Law, the Company and its counsel shall be given a reasonable opportunity to review and comment on the Proxy Statement and the Registration Statement each time before any such document is filed with the SEC, and Acquiror shall give reasonable and good faith consideration to any comments made by the Company and its counsel. To the extent permitted by Law, Acquiror shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Acquiror or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement and the Registration Statement promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the response of Acquiror to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any discussions or meetings with the SEC.

(iii)Each of Acquiror and the Company shall ensure that none of the information supplied by or on its behalf for inclusion or incorporation by reference in (A) the Registration Statement will, at the time the Registration Statement is filed with the SEC, at each time at which it is amended, at the time it is declared effective under the Securities Act, and at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading or (B) the Proxy Statement will, at the date it is first mailed to the Acquiror Stockholders and at the time of the Acquiror Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

(iv)If at any time prior to the Effective Time any information relating to the Company, Acquiror or any of their respective Subsidiaries, Affiliates, directors or officers is discovered by the Company or Acquiror, which is required or otherwise reasonably desirable to be set forth in an amendment or supplement to the Registration Statement or the Proxy Statement so that neither such document would include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein (with respect to the Proxy Statement, in light of the circumstances under which they were made), not misleading, the party which discovers such information shall promptly notify the other parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the Acquiror Stockholders.

 

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(b)Acquiror Stockholders’ Meeting. Acquiror shall (i) as promptly as practicable after the Registration Statement is declared effective, (A) cause the Proxy Statement to be disseminated to the Acquiror Stockholders in compliance with applicable Law, (B) duly give notice of and convene and hold a meeting of its stockholders (the “Acquiror Stockholders’ Meeting”) in accordance with Acquiror’s Governing Documents and NASDAQ Listing Rule 5620(b) (but in any event no later than forty-five (45) days after the date on which the Registration Statement is declared effective) for the purpose of voting solely upon the Transaction Proposals, and (C) solicit proxies from the Acquiror Stockholders to vote in favor of each of the Transaction Proposals, and (ii) provide its shareholders with the opportunity to elect to effect an Acquiror Share Redemption.

(c)Transaction Proposals. Acquiror shall, through its Board of Directors, recommend to its stockholders the (A) amendment and restatement of Acquiror’s Second Amended and Restated Certificate of Incorporation, substantially in the form attached hereto as Exhibit A (with such changes as may be agreed in writing by Acquiror and the Company) (as may be subsequently amended by mutual written agreement of the Company and Acquiror at any time before the mailing of the Proxy Statement, the “Acquiror Second A&R Charter”), including approval of the change of Acquiror’s name to “Fast Radius, Inc.” (the “Amendment Proposal”) (B) adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger, in accordance with applicable Law and exchange rules and regulations (the “Merger Proposal”), (C) to the extent required by the NASDAQ listing rules, approval of the issuance of shares of Acquiror Class A Common Stock in connection with the Merger (the “NASDAQ Proposal”), (D) approval of the adoption of the Incentive Equity Plan (the “Incentive Plan Proposal”), (E) approval of the adoption of the Purchase Plan (the “Purchase Plan Proposal”), (F) approval of the adoption of the Chief Executive Officer Equity Incentive Plan (the “CEO Incentive Plan Proposal”), (G) election of directors effective as of immediately following the Closing as contemplated by Section 8.6, (H) adoption and approval of any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Registration Statement or correspondence related thereto, (I) adoption and approval of any other proposals as reasonably agreed by Acquiror and the Company to be necessary or appropriate in connection with the transactions contemplated hereby, and (J) adjournment of the Acquiror Stockholders’ Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in (A) through (J), collectively, the “Transaction Proposals”), and include such recommendation in the Proxy Statement. The Board of Directors of Acquiror shall not withdraw, amend, qualify or modify its recommendation to the Acquiror Stockholders that they vote in favor of the Transaction Proposals (a “Modification in Recommendation”). Notwithstanding anything in this Section 9.2(c) to the contrary, if, at any time prior to obtaining the Acquiror Stockholder Approval, the Board of Directors of Acquiror determines in good faith, after consultation with its outside legal counsel, that in response to an Intervening Event, the failure to make a Modification in Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Board of Directors of Acquiror may, prior to obtaining the Acquiror Stockholder Approval, make a Modification in Recommendation; provided, however, that Acquiror shall not be entitled to make, or agree or resolve to make, a Modification in Recommendation unless (i) Acquiror delivers to the Company a written notice (an “Intervening Event Notice”) advising the Company that the Board of Directors of Acquiror proposes to take such action and containing the material facts underlying the Board of Director’s determination that an Intervening Event has occurred (it being acknowledged that such Intervening

 

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Event Notice shall not itself constitute a breach of this Agreement), and (ii) at or after 5:00 p.m., Eastern time, on the third (3rd) Business Day immediately following the day on which Acquiror delivered the Intervening Event Notice (such period from the time the Intervening Event Notice is provided until 5:00 p.m. Eastern time on the third (3rd) Business Day immediately following the day on which Acquiror delivered the Intervening Event Notice, the “Intervening Event Notice Period”), the Board of Directors of Acquiror reaffirms in good faith (after consultation with its outside legal counsel) that the failure to make a Modification in Recommendation would be inconsistent with its fiduciary duties under applicable Law. If requested by the Company, Acquiror will, and will use its reasonable best efforts to cause its Representatives to, during the Intervening Event Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Modification in Recommendation. To the fullest extent permitted by applicable Law, Acquiror agrees to establish a record date for, duly call, give notice of, convene and hold the Acquiror Stockholders’ Meeting, and submit for approval the Transaction Proposals at such Acquiror Stockholders’ Meeting, in each case in accordance with this Agreement, regardless of any Modification in Recommendation. Acquiror may only adjourn the Acquiror Stockholders’ Meeting (X) to solicit additional proxies for the purpose of obtaining the Acquiror Stockholder Approval, (Y) for the absence of a quorum and (Z) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Acquiror has determined in good faith after consultation with outside legal counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Acquiror Stockholders prior to the Acquiror Stockholders’ Meeting; provided, that the Acquiror Stockholders’ Meeting (1) may not be adjourned on one or more occasions to a date that is more than thirty (30) days after the date for which the Acquiror Stockholders’ Meeting was originally scheduled (excluding any adjournments required by applicable Law) and (2) shall not be held later than three (3) Business Days prior to the Agreement End Date. Acquiror agrees that it shall provide the holders of shares of Acquiror Class A Common Stock the opportunity to elect redemption of such shares of Acquiror Class A Common Stock in connection with the Acquiror Stockholders’ Meeting, as required by Acquiror’s Governing Documents.

(d)Company Stockholder Approvals. The Company shall solicit the Company Stockholder Approvals in the form of an irrevocable written consent (the “Written Consent”) as promptly as reasonably practicable (and in any event within two (2) Business Days) after the Registration Statement becomes effective under the Securities Act (the “Company Stockholder Approval Deadline”). As promptly as practicable after the execution of this Agreement, the Company shall prepare an information statement relating to the action to be taken by stockholders of the Company pursuant to the Written Consent (the “Consent Solicitation Statement”). As promptly as practicable after the date on which the Registration Statement becomes effective, the Company shall deliver the Consent Solicitation Statement to its stockholders. The Company shall take any other actions necessary pursuant to the Company’s Governing Documents to provide all required notices to stockholders of the Company entitled thereto in connection with obtaining the Written Consent (the “Stockholder Notice”). The Company will provide Acquiror with copies of all stockholder consents it receives within one (1) Business Day of receipt. Acquiror shall be provided with a reasonable opportunity to review and comment on the Consent Solicitation Statement and the Stockholder Notice and shall cooperate with the Company in the preparation of the Consent Solicitation Statement and the Stockholder Notice and promptly provide all reasonable information regarding Acquiror and Merger Sub reasonably requested by the Company.

 

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Section 9.3.Support of Transaction. Without limiting any covenant contained in Article VII or Article VIII, Acquiror and the Company shall each, and each shall cause its Subsidiaries to, (a) use reasonable best efforts to obtain as soon as practicable all material consents and approvals of third parties (including any Governmental Authority) that any of Acquiror, the Company or their respective Affiliates are required to obtain in order to consummate the Merger, and (b) take such other action as soon as practicable as may be reasonably necessary or as another party hereto may reasonably request to satisfy the conditions of Article X or otherwise to comply with this Agreement and to consummate the transactions contemplated hereby as soon as practicable and in accordance with all applicable Law.

Section 9.4.Section 16 Matters. Prior to the Effective Time, each of Acquiror and the Company, as applicable, shall use all reasonable efforts to approve in advance, in accordance with the applicable requirements of Rule 16b-3 promulgated under the Exchange Act, any dispositions of the capital stock of the Company (including derivative securities with respect to the capital stock of the Company) and acquisitions of Acquiror Common Stock (including derivative securities with respect to Acquiror Common Stock) resulting from the transactions contemplated by this Agreement by each officer or director of Acquiror or the Company who is subject to Section 16 of the Exchange Act (or who will become subject to Section 16 of the Exchange Act) as a result of the transactions contemplated hereby.

Section 9.5.Notice of Developments. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall promptly (and in any event prior to the Closing) notify Acquiror in writing, and Acquiror shall promptly (and in any event prior to the Closing) notify the Company in writing, upon any of the Company and its Subsidiaries, on the one hand, or Acquiror and Merger Sub, on the other hand, as applicable, becoming aware: (i) of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which has caused or may reasonably be expected to cause any condition to the obligations of any party to effect the Merger not to be satisfied, (ii) of any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the Merger, (iii) of any notice or other communication from any Governmental Authority relating to the ability of the parties to consummate the Merger or the timing thereof, or (iv) of the commencement or initiation or threat of commencement or initiation of any Legal Proceeding regarding the Merger. The delivery of any notice pursuant to this Section 9.6 shall not cure any breach of any representation or warranty requiring disclosure of such matter or any breach of any covenant, condition or agreement contained in this Agreement or any Ancillary Agreements or otherwise limit or affect the rights of, or the remedies available to, Acquiror or the Company, as applicable.

Section 9.6.Cooperation; Consultation. Prior to Closing, each of the Company and Acquiror shall, and each of them shall cause its respective Subsidiaries (as applicable) and its and their Representatives to, reasonably cooperate in a timely manner in connection with any financing arrangement the parties mutually agree to seek in connection with the transactions contemplated by this Agreement (it being understood and agreed that the consummation of any such financing by the Company or Acquiror shall be subject to the parties’ mutual agreement), including (if mutually agreed by the parties) (i) by providing such information and assistance as the other party may reasonably request (including the Company providing such financial statements and other financial data relating to the Company and its Subsidiaries as would be required if Acquiror were

 

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filing a general form for registration of securities under Form 10 following the consummation of the transactions contemplated hereby and a registration statement on Form S‑1 for the resale of the securities issued in the PIPE Investment following the consummation of the transactions contemplated hereby), (ii) granting such access to the other party and its representatives as may be reasonably necessary for their due diligence, and (iii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with respect to such financing efforts (including direct contact between senior management and other Representatives of the Company and its Subsidiaries at reasonable times and locations). All such cooperation, assistance and access shall be granted during normal business hours and shall be granted under conditions that shall not unreasonably interfere with the business and operations of the Company, Acquiror, or their respective auditors.

Section 9.7.Stockholder Litigation.

(a)In the event that any stockholder litigation related to this Agreement or the documents contemplated hereby or the transactions contemplated hereby and thereby is brought, or, to the Knowledge of Acquiror or the Knowledge of the Company, as the case may be, threatened, against such party or the members of each respective party’s Board of Directors prior to the Closing, Acquiror and the Company shall promptly notify the other party of any such actual or threatened stockholder litigation and shall keep the other reasonably informed with respect to the status thereof.

(b)Acquiror (i) shall control the defense of any such Action brought against Acquiror or members of the Board of Directors of Acquiror, provided that Acquiror shall give the Company the reasonable opportunity to participate in any response to and, if applicable, in the defense or settlement of any stockholder claim or litigation (including any purported claim or litigation and any class action or derivative litigation) against Acquiror or its officers or directors relating to this Agreement and the transactions contemplated hereby, and no such response to, or any settlement of, shall be made or be agreed to without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), and (ii) shall, and shall use its reasonable best efforts to cause its Representatives to, cooperate with the Company in the defense against such claim or litigation or purported claim or litigation. The Company (x) shall control the defense of any such Action brought against the Company or members of the Board of Directors of the Company, provided that the Company shall give Acquiror the reasonable opportunity to participate in any response to and, if applicable, in the defense or settlement of any stockholder claim or litigation (including any purported claim or litigation and any class action or derivative litigation) against the Company or its officers or directors relating to this Agreement or the documents contemplated hereby or the transactions contemplated hereby or thereby, and no such response to, or any settlement of, shall be made or be agreed to without the prior written consent of Acquiror (not to be unreasonably withheld, conditioned or delayed), and (y) shall, and shall use its reasonable best efforts to cause its Representatives to, cooperate with Acquiror in the defense against such claim or litigation or purported claim or litigation.

 

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Article X
CONDITIONS TO OBLIGATIONS

Section 10.1.Conditions to Obligations of Acquiror, Merger Sub and the Company. The obligations of Acquiror, Merger Sub and the Company to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by all of such parties:

(a)the Acquiror Stockholder Approval shall have been obtained with respect to the Transaction Proposals described in clauses (A), (B), (C), (D), (E), (F) and (H) of Section 9.2(c);

(b)the Company Stockholder Approvals shall have been obtained;

(c)The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the SEC and not withdrawn;

(d)all waiting periods (and any extensions thereof) applicable to the transactions contemplated hereby under the HSR Act shall have expired or been terminated;

(e)there shall not be in force any Governmental Order or Law enjoining or prohibiting, the consummation of the Merger; provided, that the Governmental Authority issuing such Governmental Order or Law has jurisdiction over the parties hereto with respect to the transactions contemplated hereby;

(f)Acquiror shall have at least five million and one Dollars ($5,000,001) of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) after giving effect to the payment of the Acquiror Share Redemption Amount, the PIPE Investment and the transactions contemplated by the Forward Purchase Agreement; and

(g)the shares of Acquiror Class A Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject only to official notice of issuance thereof, and, as of immediately following the Effective Time, Acquiror shall satisfy any applicable initial and continuing listing requirements of NASDAQ, and Acquiror shall not have received any notice of non-compliance therewith from NASDAQ that has not been cured or would not be cured at or immediately following the Effective Time.

Section 10.2.Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction at or prior to the Closing of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:

(a)(i) the Company Fundamental Representations shall be true and correct in all respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all respects at and as of such date, (ii) the representations and warranties of the

 

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Company made pursuant to Section 5.24 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception), other than pursuant to clause (b) thereof, shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations and the representations and warranties set forth in clause (ii) above (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be so true and correct at and as of such date, except, in the case of this clause (iii) for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;

(b)each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects;

(c)the Company shall have delivered or caused to be delivered to Acquiror all of the items contemplated by Section 2.4(a);

(d)the Company shall have delivered or caused to be delivered to Acquiror the waivers set forth in Section 10.2(d) of the Company Disclosure Letter; and

(e)there shall not have occurred a Company Material Adverse Effect after the date of this Agreement.

Section 10.3.Conditions to the Obligations of the Company. The obligation of the Company to consummate, or cause to be consummated, the Merger is subject to the satisfaction at or prior to the Closing of the following additional conditions, any one or more of which may be waived in writing by the Company:

(a)(i) the Acquiror Fundamental Representations shall be true and correct in all respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all respects at and as of such date, (ii) the representations and warranties of Acquiror made pursuant to Section 6.12(a), Section 6.12(b) and Section 6.12(c) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception), shall be true and correct in all respects other than de minimis inaccuracies, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all respects other than de minimis inaccuracies at and as of such date, (iii) the representations and warranties of Acquiror made pursuant to Section 6.10 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception), other than pursuant to clause (b) thereof, shall be true and correct in all material respects and the representation and warranty of Acquiror

 

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made pursuant to Section 6.10(b) shall be true and correct in all respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects (or, in the case of Section 6.10(b), in all respects) at and as of such date, and (iv) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations and the representations and warranties set forth in Section 6.10, Section 6.12(a), Section 6.12(b) and Section 6.12(c) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except in the case of this clause (iv) for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect;

(b)each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;

(c)the Available Acquiror Cash shall be no less than the Minimum Available Acquiror Cash Amount;

(d)any directors and officers of Acquiror that are not identified as the initial post-Closing directors and officers of Acquiror in accordance with Section 8.6 shall have resigned their respective positions, effective as of the Closing;

(e)Acquiror shall have delivered or caused to be delivered to the Company all of the items contemplated by Section 2.4(b); and

(f)there shall not have occurred an Acquiror Material Adverse Effect after the date of this Agreement.

Article XI
TERMINATION/EFFECTIVENESS

Section 11.1.Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned:

(a)by mutual written consent of the Company and Acquiror;

(b)by written notice from either the Company or Acquiror to the other party if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order or Law which has become final and nonappealable and has the effect of making consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Merger;

(c)by written notice from either the Company or Acquiror to the other party if the Acquiror Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the Acquiror Stockholders’ Meeting duly convened therefor or at any adjournment or postponement thereof;

 

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(d)by written notice from the Company to Acquiror upon a Modification in Recommendation;

(e)by written notice to the Company from Acquiror if (i) there is any breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, such that the conditions specified in Section 10.2(a) or Section 10.2(b) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Company through the exercise of its reasonable best efforts, then, for a period until the earlier of (A) thirty (30) days after receipt by the Company of written notice from Acquiror of such breach and (B) the Agreement End Date, but only as long as the Company continues to use its respective reasonable best efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period; or (ii) the Closing has not occurred on or before the date that is seven (7) months after the date of this Agreement (the “Agreement End Date”), unless, in the case of clause (i) or (ii), Acquiror is in material breach hereof;

(f)by written notice to the Company from Acquiror if the Written Consent shall not have been obtained pursuant to Section 9.2(d) on or prior to the Company Stockholder Approval Deadline; or

(g)by written notice to Acquiror from the Company if (i) there is any breach of any representation, warranty, covenant or agreement on the part of Acquiror or Merger Sub set forth in this Agreement, such that the conditions specified in Section 10.3(a) and Section 10.3(b) would not be satisfied at the Closing (a “Terminating Acquiror Breach”), except that, if any such Terminating Acquiror Breach is curable by Acquiror through the exercise of its reasonable best efforts, then, for a period until the earlier of (A) thirty (30) days after receipt by Acquiror of notice from the Company of such breach and (B) the Agreement End Date, but only as long as Acquiror continues to exercise such reasonable best efforts to cure such Terminating Acquiror Breach (the “Acquiror Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Acquiror Breach is not cured within the Acquiror Cure Period; or (ii) the Closing has not occurred on or before the Agreement End Date, unless, in the case of clause (i) or (ii), the Company is in material breach hereof.

Section 11.2.Effect of Termination. In the event of the termination of this Agreement pursuant to Section 11.1, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party hereto, its respective Affiliates and its and their respective Representatives, other than liability of the Company, Acquiror or Merger Sub, as the case may be, for fraud or any willful and material breach of this Agreement occurring prior to such termination, except that the provisions of this Section 11.2 and Article XII and the Confidentiality Agreement shall survive any termination of this Agreement.

Article XII
MISCELLANEOUS

Section 12.1.Trust Account Waiver. The Company acknowledges that Acquiror is a blank check company with the powers and privileges to effect a Business Combination. The

 

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Company further acknowledges that, as described in the prospectus dated February 10, 2021 (the “Prospectus”) available at www.sec.gov, substantially all of Acquiror assets consist of the cash proceeds of Acquiror’s initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in a trust account for the benefit of Acquiror, certain of its public stockholders and the underwriters of Acquiror’s initial public offering (the “Trust Account”). The Company acknowledges that it has been advised by Acquiror that, except with respect to interest earned on the funds held in the Trust Account that may be released to Acquiror to pay its franchise Tax, income Tax and similar obligations, the Trust Agreement provides that cash in the Trust Account may be disbursed only (i) if Acquiror completes an initial business combination, then to those Persons and in such amounts as described in the Prospectus, (ii) if Acquiror fails to complete an initial business combination within the allotted time period and liquidates, subject to the terms of the Trust Agreement and applicable Law, to Acquiror in limited amounts to permit Acquiror to pay applicable Taxes and the costs and expenses of its liquidation and dissolution, and then to Acquiror’s public stockholders, and (iii) if Acquiror holds a stockholder vote to amend Acquiror’s Amended and Restated Articles of Incorporation (A) to modify the substance or timing of Acquiror’s obligation to provide holders of Acquiror Class A Common Stock the right to have their shares redeemed in connection with Acquiror’s initial business combination or to redeem one hundred percent (100%) of the outstanding shares of Acquiror Class A Common Stock if Acquiror does not complete an initial business combination within the allocated time period or (B) with respect to any other provision relating to the rights of holders of Acquiror Class A Common Stock or pre-initial business combination activity, then for the redemption of any Acquiror Class A Common Stock properly tendered in connection with such vote. For and in consideration of Acquiror entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Company hereby irrevocably waives any right, title, interest or claim of any kind it has or may have in the future in or to any monies in the Trust Account and agrees not to seek recourse against the Trust Account or any funds distributed therefrom as a result of, or arising out of, this Agreement and any negotiations or Contracts with Acquiror.

Section 12.2.Waiver. Any party to this Agreement may, at any time prior to the Closing, by action taken by its Board of Directors or other officers or Persons thereunto duly authorized, (a) extend the time for the performance of the obligations or acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties (of another party hereto) that are contained in this Agreement or (c) waive compliance by the other parties hereto with any of the agreements or conditions contained in this Agreement, but such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party granting such extension or waiver. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of such rights.

Section 12.3.Notices. All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email (in each case in this clause (iv), solely

 

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if receipt is confirmed, but excluding any automated reply, such as an out-of-office notification), addressed as follows:

(a)If to Acquiror or Merger Sub prior to the Closing, or to Acquiror after the Effective Time, to:

ECP Environmental Growth Opportunities Corp.

40 Beechwood Road

Summit, New Jersey 07901

Attention:  Tyler Reeder

Email: [email protected]

with copies to (which shall not constitute notice):

Latham and Watkins LLP

1271 Avenue of the Americas

New York, NY 10020

Attention:David Kurzweil, David Owen

Email: [email protected]; [email protected]

and

Latham and Watkins LLP

811 Main St., Suite 3700

Houston, TX 77002

Attention:Ryan Maierson

Email: [email protected]

 

(b)If to the Company prior to the Closing, or to the Surviving Company after the Effective Time, to:

Fast Radius, Inc.

113 N May St

Chicago, IL 60607

Attention:  Louis Rassey

Email:  [email protected]

with copies to (which shall not constitute notice):

DLA Piper LLP (US)

444 West Lake Street, Suite 900

Chicago, Illinois 60606

Attention: Scott Kapp and Adam Spector

Email: [email protected]; [email protected]

and

DLA Piper LLP (US)

 

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555 Mission Street, Suite 2400

San Francisco, CA 94105

Attention: Jeffrey C. Selman

Email: [email protected]

 

or to such other address or addresses as the parties may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.

Section 12.4.Assignment. No party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties and any such transfer without prior written consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Section 12.5.Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the parties hereto, any right or remedies under or by reason of this Agreement; provided, that (a) the D&O Indemnified Parties and the past, present and future directors, managers, officers, employees, incorporators, members, partners, stockholders, Affiliates, agents, attorneys, advisors and other Representatives of the parties, and any Affiliate of any of the foregoing (and their successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, Section 8.7 and Section 12.16, as applicable, and (b) the Sponsor is an intended third party beneficiary of, and may enforce, Section 12.11.

Section 12.6.Expenses. Except as otherwise set forth in this Agreement, each party hereto shall be responsible for and pay its own expenses incurred in connection with this Agreement and the transactions contemplated hereby, including all fees of its legal counsel, financial advisers and accountants; provided, that, if the Closing shall occur, Acquiror shall pay or cause to be paid, (x) the Company Transaction Expenses, and (y) the Acquiror Transaction Expenses, in the case of each of clause (x) and (y), in accordance with Section 2.4(c). For the avoidance of doubt, any payments to be made (or to cause to be made) by Acquiror pursuant to this Section 12.6 shall be paid upon consummation of the Merger and release of proceeds from the Trust Account.

Section 12.7.Governing Law. This Agreement, and all claims or causes of action (whether in Contract, tort or otherwise) based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.

Section 12.8.Headings; Counterparts. The headings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in .pdf format or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. Signatures to this Agreement transmitted by electronic mail in .pdf form, or by any other electronic means designed to preserve the original graphic and

 

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pictorial appearance of a document (including DocuSign), will be deemed to have the same effect as physical delivery of the paper document bearing the original signatures.

Section 12.9.Company and Acquiror Disclosure Letters. The Company Disclosure Letter and the Acquiror Disclosure Letter (including, in each case, any section thereof) referenced herein are a part of this Agreement as if fully set forth herein. All references herein to the Company Disclosure Letter and/or the Acquiror Disclosure Letter (including, in each case, any section thereof) shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by a party in the applicable Disclosure Letter, or any section thereof, with reference to any section of this Agreement or section of the applicable Disclosure Letter shall be deemed to be a disclosure with respect to such other applicable sections of this Agreement or sections of the applicable Disclosure Letter if it is reasonably apparent on the face of such disclosure that such disclosure is responsive to such other section of this Agreement or section of the applicable Disclosure Letter. Certain information set forth in the Disclosure Letters is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made in this Agreement, nor shall such information be deemed to establish a standard of materiality.

Section 12.10.Entire Agreement. This Agreement (together with the Company Disclosure Letter and the Acquiror Disclosure Letter and the other agreements, documents and certificates delivered in accordance with this Agreement, including the Sponsor Support Agreement and the Nondisclosure Agreement, dated as of February 10, 2021, between Acquiror and the Company (the “Confidentiality Agreement” and, collectively, the “Ancillary Agreements”)) constitutes the entire agreement among the parties to this Agreement relating to the transactions contemplated hereby and supersedes any other agreements, whether written or oral, that may have been made or entered into by or among any of the parties hereto or any of their respective Subsidiaries or Affiliates relating to the transactions contemplated hereby. No representations, warranties, covenants, understandings or agreements, oral or otherwise, relating to the transactions contemplated hereby exist between such parties except as expressly set forth in this Agreement and the Ancillary Agreements.

Section 12.11.Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed by the parties hereto in the same manner as this Agreement and which makes reference to this Agreement. The adoption of this Agreement by the stockholders of any of the parties shall not restrict the ability of the Board of Directors of any of the parties to terminate this Agreement in accordance with Section 11.1 or to cause such party to enter into an amendment to this Agreement pursuant to this Section 12.11; provided, that (a) after the Effective Time, no amendment or supplement to the provisions of Article IV shall be made without the prior written consent of Sponsor, (b) after any such adoption of this Agreement by the Company’s stockholders, no amendment or supplement to the provisions of this Agreement shall be made which by applicable requirement of Law requires further approval of the Company’s stockholders without the further approval of such stockholders and (c) after any such approval of the Agreement by Acquiror Stockholders, no amendment or supplement to the provisions of this Agreement shall be made which by applicable requirement of Law requires further approval of the stockholders of Acquiror without the further approval of such stockholders.

 

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Section 12.12.Publicity.

(a)All press releases or other public communications relating to the transactions contemplated hereby, and the method of the release for publication thereof, shall, prior to the Closing, be subject to the prior mutual approval of Acquiror and the Company, which approval shall not be unreasonably withheld by any party; provided, that no party shall be required to obtain consent pursuant to this Section 12.12(a) to the extent any proposed release or statement is substantially equivalent to information that has previously been made public without breach of the obligation under this Section 12.12(a).

(b)The restriction in Section 12.12(a) shall not apply to the extent any public announcement is required by applicable Securities Laws, any Governmental Authority or stock exchange rule; provided, that, in such an event, the party making the announcement shall use its commercially reasonable efforts to consult with the other party in advance as to its form, content and timing. Disclosures resulting from the parties’ efforts to obtain approval or early termination under the HSR Act and to make any relating filing shall be deemed not to violate this Section 12.12.

Section 12.13.Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.

Section 12.14.Jurisdiction; Waiver of Jury Trial.

(a)Any Action based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), or, if a party hereto has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Action, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Action shall be heard and determined only in any such court, and (iv) agrees not to bring any Action arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this Section 12.14.

(b)EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED

 

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AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 12.15.Enforcement. The parties hereto agree that irreparable damage could occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specific enforcement of the terms and provisions of this Agreement, in addition to any other remedy to which any party is entitled at law, in equity or under this Agreement. In the event that any Action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.

Section 12.16.Non-Recourse. Solely with respect to the Company, Acquiror and Merger Sub, this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against, the Company, Acquiror and Merger Sub as named parties hereto. Except to the extent that such Person is a party hereto (and then only to the extent of the specific obligations undertaken by such party hereto), (i) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or other Representative or Affiliate of the Company, Acquiror or Merger Sub and (ii) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or other Representative or Affiliate of any of the foregoing Persons in clause (i) shall have any liability (whether in Contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the Company, Acquiror or Merger Sub under this Agreement for any claim based on, arising out of, or related to this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby.

Section 12.17.Non-Survival of Representations, Warranties and Covenants. Except (x) as otherwise contemplated by Section 11.2 or (y) in the case of claims against a party in respect of such party’s fraud, none of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the termination of this Agreement or the Closing, as applicable, and all of the foregoing shall terminate and expire upon the occurrence of such termination or the Effective Time (and there shall be no liability after such termination or the Closing in respect thereof), except for (a) those covenants and agreements contained herein that by their terms expressly apply in whole or in part after the Closing and then only with respect to any breaches occurring after the Closing and (b) this Article XII.

 

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Section 12.18.Conflicts and Privilege.

(a)Acquiror and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the Sponsor, the stockholders or holders of other Equity Interests of Acquiror or any of their respective equityholders, directors, members, managers, partners, officers, employees or Affiliates (other than Acquiror and the Surviving Company and its Subsidiaries) (collectively, the “Acquiror Group”), on the one hand, and (y) Acquiror, the Surviving Company and/or any member of the Company Group, on the other hand, any legal counsel, including Latham & Watkins LLP (“Latham”), that represented Acquiror and/or the Sponsor prior to the Closing may represent the Sponsor and/or any other member of the Acquiror Group, in such dispute even though the interests of such Persons may be directly adverse to Acquiror, the Surviving Company and its Subsidiaries, and even though such counsel may have represented Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company, its Subsidiaries and/or the Sponsor. Acquiror and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company and its Subsidiaries), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the transactions contemplated hereby or thereby) between or among Acquiror, the Sponsor and/or any other member of the Acquiror Group, on the one hand, and Latham, on the other hand (the “Latham Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Merger and belong to the Acquiror Group after the Closing, and shall not pass to or be claimed or controlled by the Surviving Company or its Subsidiaries. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with Acquiror or the Sponsor under a common interest agreement shall remain the privileged communications or information of the Surviving Company. Acquiror and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Latham Privileged Communications, whether located in the records or email server of Acquiror, the Surviving Company or their respective Subsidiaries, in any Action against or involving any of the parties after the Closing, and Acquiror and the Company agree not to assert that any privilege has been waived as to the Latham Privileged Communications, by virtue of the Merger.

(b)Acquiror and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the stockholders or holders of other Equity Interests of the Company and any of their respective equityholders, directors, members, managers, partners, officers, employees or Affiliates (other than the Company and the Surviving Company and its Subsidiaries) (collectively, the “Company Group”), on the one hand, and (y) the Company, the Surviving Company and/or any member of the Acquiror Group, on the other hand, any legal counsel, including DLA Piper LLP (“DLA”) that represented the Company prior to the Closing may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to the Company, the Surviving Company and its Subsidiaries, and

 

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even though such counsel may have represented Acquiror and/or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company and its Subsidiaries, further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the transactions contemplated hereby or thereby) between or among the Company and/or any member of the Company Group, on the one hand, and DLA, on the other hand (the “DLA Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Merger and belong to the Company Group after the Closing, and shall not pass to or be claimed or controlled by the Surviving Company or its Subsidiaries. Notwithstanding the foregoing, any privileged communications or information shared by Acquiror prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Surviving Company. Acquiror and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the DLA Privileged Communications, whether located in the records or email server of Acquiror, the Surviving Company or their respective Subsidiaries, in any Action against or involving any of the parties after the Closing, and Acquiror and the Company agree not to assert that any privilege has been waived as to the DLA Privileged Communications, by virtue of the Merger.

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IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be duly executed as of the date first above written.

ECP ENVIRONMENTAL GROWTH OPPORTUNITIES CORP.

 

 

 

 

ENNV MERGER SUB, INC.

 

 

 

 

FAST RADIUS, INC.

 

 

 

 

 

[Signature Page to Agreement and Plan of Merger]

Exhibit 10.1

 

SUBSCRIPTION AGREEMENT

This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on [●], 2021, by and between ECP Environmental Growth Opportunities Corp., a Delaware corporation (“ENNV”), and the undersigned subscriber (the “Investor”).

WHEREAS, this Subscription Agreement is being entered into in connection with the Agreement and Plan of Merger, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the “Transaction Agreement”), by and among ENNV, Fast Radius, Inc., a Delaware corporation (the “Company”), and ENNV Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of ENNV (“Merger Sub”), pursuant to which, among other things, Merger Sub will merge with and into the Company, with the Company surviving such merger as a wholly owned subsidiary of ENNV, and ENNV will change its name to “Fast Radius, Inc.”, on the terms and subject to the conditions set forth therein (the “Transaction”);

WHEREAS, in connection with the Transaction, ENNV is seeking commitments from interested investors to purchase, substantially concurrently with the closing of the Transaction, shares (the “Shares”) of ENNV’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), in a private placement for a purchase price of $10.00 per share (the “Per Share Subscription Price” and the aggregate of such Per Share Subscription Price for all Shares for which the Investor subscribes (as set forth on the signature page hereto), the “Subscription Amount”) on the terms and subject to the conditions contained herein;

WHEREAS, substantially concurrently with the execution of this Subscription Agreement, ENNV is entering into separate subscription agreements (collectively, the “Other Subscription Agreements”) with certain other investors (the “Other Investors” and, together with the Investor, the “Investors”), which are on substantially the same terms as the terms of this Subscription Agreement, pursuant to which the Investors have agreed to purchase an aggregate of 7,500,000 Shares (inclusive of the Shares to be purchased by the Investor pursuant to this Subscription Amount) (the “PIPE Investment”).

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, set forth herein, and intending to be legally bound hereby, each of the Investor and ENNV acknowledges and agrees as follows:

1.Subscription.  Subject to the provisions of Section 2 hereof, the Investor hereby irrevocably subscribes for and agrees to purchase from ENNV, and ENNV hereby irrevocably agrees to sell to the Investor, the number of Shares set forth on the signature page of this Subscription Agreement, in each case, on the terms and subject to the conditions provided for herein.  The Investor acknowledges and agrees that the Investor’s subscription for the Shares shall be deemed to be accepted by ENNV only if and when this Subscription Agreement is signed by a duly authorized person by or on behalf of ENNV; ENNV may do so in counterpart form.

2.Closing.  The closing of the sale of the Shares contemplated hereby (the “Closing”) shall occur on a closing date (the “Closing Date”) specified in the Closing Notice (as defined below), and be conditioned upon the substantially concurrent consummation of the Transaction (the closing date of the Transaction, the “Transaction Closing Date”) and the closing of the sale of the Shares under the Other Subscription Agreements constituting the PIPE Investment.  Not less

 

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than five (5) business days prior to the scheduled Transaction Closing Date, ENNV shall provide written notice to the Investor (the “Closing Notice”) (i) of such scheduled Transaction Closing Date and the anticipated Closing Date, (ii) that ENNV reasonably expects all conditions to the closing of the Transaction to be satisfied or waived on such scheduled Transaction Closing Date and (iii) wire instructions for delivery of the Subscription Amount to ENNV.  Not later than three (3) business days prior to the anticipated Closing Date, the Investor shall deliver the Subscription Amount to ENNV by wire transfer of United States dollars in immediately available funds to the account(s) specified by ENNV in the Closing Notice.  On the Closing Date, ENNV shall (i) issue the Shares to the Investor, (ii) subsequently cause the Shares to be registered in book entry form in the name of the Investor on the ENNV share register and (iii) use commercially reasonable efforts promptly thereafter to cause its transfer agent to provide to Investor a copy of such transfer agent’s records showing Investor (or its valid nominee or custodian, as applicable) as the owner of the Shares on and as of the Closing Date; provided, however, that ENNV’s obligation to issue the Shares to the Investor is contingent upon ENNV having received the Subscription Amount in full accordance with this Section 2.  For purposes of this Subscription Agreement, “business day” shall mean a day, other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.  Prior to or at the Closing, Investor shall deliver to ENNV a duly completed and executed Internal Revenue Service Form W‑9 or appropriate Form W‑8.  Unless otherwise agreed to in writing by ENNV and the Investor, in the event the Transaction Closing Date does not occur within five (5) business days after the Closing Date under this Subscription Agreement, ENNV shall promptly (but not later than two (2) business days thereafter) return the Subscription Amount to the Investor by wire transfer of U.S. dollars in immediately available funds to the account specified by the Investor, and any book-entries for the Shares shall be deemed repurchased and cancelled; provided that, unless this Subscription Agreement has been terminated pursuant to Section 9 hereof, such return of funds shall (a) not terminate this Subscription Agreement, (b) by itself, constitute a failure of any of the conditions to Closing under Section 3, or (c) relieve the Investor of its obligation to purchase the Shares at the Closing upon the satisfaction of the conditions set forth in Section 3.

3.Closing Conditions.

(a)The obligation of ENNV to consummate the transactions contemplated hereunder is subject to the satisfaction (or valid waiver by ENNV in writing) of the conditions that, at the Closing:

(i)the representations and warranties made by the Investor in this Subscription Agreement shall be true and correct in all material respects as of the Closing Date other than (A) those representations and warranties qualified by materiality, Material Adverse Effect (as defined below) or similar qualification, which shall be true and correct in all respects as of the Closing Date, and (B) those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar qualification, all respects) as of such date, in each case without giving effect to the consummation of the Transaction; and

(ii)the Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription

 

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Agreement to be performed, satisfied or complied with by the Investor at or prior to the Closing.

(b)The obligation of the Investor to consummate the transactions contemplated hereunder is subject to the satisfaction (or valid waiver by the Investor in writing) of the conditions that:

(i)the representations and warranties made by ENNV in this Subscription Agreement shall be true and correct in all material respects as of the Closing Date other than (x) those representations and warranties qualified by materiality, Material Adverse Effect or similar qualification, which shall be true and correct in all respects as of the Closing Date and (y) those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar qualification, all respects) as of such date, in each case without giving effect to the consummation of the Transaction;

(ii)ENNV shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing;

(iii)there shall have been no amendment, waiver or modification to the Transaction Agreement (including, but not limited to, Article X therein) that materially and adversely affects the economic benefits that Investor would reasonably expect to receive under this Subscription Agreement, except to the extent consented to in writing by Investor;

(iv)no suspension of the qualification of the Class A Common Stock for offering or sale or trading in any jurisdiction and, to ENNV’s knowledge, no initiation nor threatening of any proceedings for any of such purposes, shall have occurred and be continuing, and such shares of Class A Common Stock shall have been approved for listing, subject to official notice of issuance, on NASDAQ (as defined below); and

(v)there shall have been no amendment, waiver, or modification to any Other Subscription Agreements that materially benefits any Other Investors unless Investor will have been offered substantially similar benefits in writing.

(c)The obligation of the parties hereto to consummate the transactions contemplated hereunder is subject to the satisfaction (or valid waiver by ENNV and the Investor in writing) of the conditions that:

(i)no governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) that is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby; and no such governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such restraint or prohibition; and

 

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(ii)all conditions precedent to the closing of the Transaction set forth in the Transaction Agreement, including the approval of the Company’s stockholders and regulatory approvals, if any, shall have been satisfied or waived (other than those conditions which, by their nature, are to be satisfied by a party to the Transaction Agreement at the closing of the Transaction, but subject to satisfaction or waiver by such party of such conditions as of the closing of the Transaction).

4.Further Assurances.  At the Closing, the parties hereto shall execute and deliver or cause to be executed and delivered such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary to consummate the subscription as contemplated by this Subscription Agreement.

5.ENNV Representations and Warranties.  ENNV represents and warrants to the Investor, as of the date hereof and as of the Closing Date, that:

(a)ENNV has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.

(b)The Shares will be duly authorized and, when issued and delivered to the Investor against full payment therefor and registered with ENNV’s transfer agent in accordance with the terms of this Subscription Agreement, will be validly issued, fully paid and non-assessable, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under ENNV’s certificate of incorporation and bylaws (as in effect at such time of issuance) or under the Delaware General Corporation Law or otherwise.

(c)This Subscription Agreement has been duly authorized, executed and delivered by ENNV and, assuming the due authorization, execution and delivery of the Subscription Agreement by Investor, is valid, binding and enforceable against ENNV in accordance with its terms, except as may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting the rights of creditors generally, and subject, as to enforceability, to general principles of equity.

(d)The execution, delivery and performance of this Subscription Agreement, including the issuance and sale by ENNV of the Shares pursuant to this Subscription Agreement, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of ENNV or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which ENNV or any of its subsidiaries is a party or by which ENNV or any of its subsidiaries is bound or to which any of the property or assets of ENNV is subject that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or results of operations of ENNV and its subsidiaries, taken as a whole (a “Material Adverse Effect”), or materially affect the validity of the Shares or the legal authority of ENNV to comply in all material respects with its obligations under this Subscription Agreement; (ii) the provisions of the organizational documents of ENNV; or (iii)  any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over ENNV or any of its properties that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially affect the validity of the Shares or the legal authority of ENNV to comply in all material respects with its obligations under this Subscription

 

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Agreement.

(e)As of their respective filing dates, all reports required to be filed by ENNV with the U.S. Securities and Exchange Commission (the “SEC”) since February 8, 2021 (the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated thereunder.  None of the SEC Reports filed under the Exchange Act included, when filed or, if amended, as of the date of such amendment with respect to those disclosures that are amended, and, to ENNV’s knowledge, no registration statement, proxy statement or Prospectus (as defined herein) to be filed by ENNV with respect to the Transaction or any other information relating to the Company or any of its affiliates included in any SEC Report or filed as an exhibit thereto will include, when filed, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. ENNV has timely filed with the SEC each SEC Report that ENNV was required to file with the SEC.  As of the date hereof, there are no material outstanding or unresolved comments in comment letters received by ENNV from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports. Other than as disclosed in the SEC Reports, the financial statements of ENNV included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of ENNV as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited financial statements, to normal, year-end audit adjustments.

(f)ENNV is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self‑regulatory organization or other person in connection with the issuance of the Shares pursuant to this Subscription Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, (iii) the filings required in accordance with Section 13 of this Subscription Agreement; (iv) those required by the NASDAQ (“NASDAQ”), including with respect to obtaining approval of ENNV’s stockholders, and (v) those the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or have a material adverse effect on ENNV’s ability to consummate the transactions contemplated hereby, including the sale and issuance of the Shares to the Investor.

(g)ENNV is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. As of the date hereof, ENNV has not received any written communication from a governmental authority that alleges that ENNV is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

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(h)Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Subscription Agreement, no registration under the Securities Act, is required for the offer and sale of the Shares by ENNV to the Investor.

(i)Neither ENNV nor any person acting on its behalf has offered or sold the Shares by any form of general solicitation or general advertising in violation of the Securities Act.

(j)ENNV is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Shares other than to the Placement Agents (as defined below), which for the avoidance of doubt, shall not be payable by the Investor.

(k)As of the date hereof, the issued and outstanding shares of Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and listed for trading on NASDAQ.  There is no suit, action, claim, proceeding or investigation pending or, to the knowledge of ENNV, threatened against ENNV by NASDAQ or the SEC with respect to any intention by such entity to deregister the Class A Common Stock or to prohibit or terminate the listing of the Class A Common Stock on NASDAQ, excluding, for the purposes of clarity, the customary ongoing review by NASDAQ in connection with the Transaction.  ENNV has taken no action that is designed to terminate the registration of the Class A Common Stock under the Exchange Act prior to the Closing.

(l)The Other Subscription Agreements reflect the same Per Share Subscription Price and other terms with respect to the purchase of the Shares that are no more favorable to the Other Investors thereunder than the terms of this Subscription Agreement, other than terms particular to the regulatory requirements of such Other Investors or their affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Shares.

(m)There are no stockholder agreements, voting trusts or other agreements or understandings to which ENNV is a party or by which it is bound relating to the voting of any securities of ENNV, other than (1) as set forth in the SEC Reports and (2) as contemplated by the Transaction Agreement.

(n)As of the date hereof, the authorized capital stock of ENNV consists of (i) 100,000,000 shares of Class A Common Stock, of which 34,500,000 are issued and outstanding, (ii) 10,000,000 shares of Class B Common Stock, par value $0.0001 per share, of which 8,625,000 are issued and outstanding and (iii) 1,000,000 shares of preferred stock, par value $0.0001 per share, of ENNV, of which no shares are issued and outstanding.

6.Investor Representations and Warranties.  The Investor represents and warrants to ENNV, as of the date hereof and as of the Closing Date, that:

(a)The Investor (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7) or (8) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” (as

 

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defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501501(a)(1), (2), (3), (7) or (8) under the Securities Act), and the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information set forth on Schedule A).  Accordingly, the Investor understands that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J).  The Investor is not an entity formed for the specific purpose of acquiring the Shares. The Investor (i) is an “institutional account” as defined by FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares.  Accordingly, the Investor understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b).

(b)The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that the Shares have not been registered under the Securities Act and that ENNV is not required to register the Shares except as set forth in Section 7 of this Subscription Agreement.  The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to ENNV or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in each case, in accordance with any applicable securities laws of the states of the United States and other applicable jurisdictions, and that the book entries representing the Shares shall contain a restrictive legend to such effect.  The Investor acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time.  The Investor acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act, and that the provisions of Rule 144(i) will apply to the Shares.  The Investor acknowledges and agrees that it has been advised to consult legal, tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the Shares.

(c)The Investor acknowledges and agrees that the Investor is purchasing the Shares from ENNV in connection with the Transaction.  The Investor further acknowledges that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ENNV, the Company, or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, in connection with the purchase of the Shares, other than those representations, warranties, covenants and agreements of ENNV expressly set forth in Section 5 of this Subscription Agreement.  The Investor acknowledges that certain information

 

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provided by the Company was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections.

(d)The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary to make an investment decision with respect to the Shares, including, with respect to ENNV, the Transaction and the business of the Company and its subsidiaries.  Without limiting the generality of the foregoing, the Investor acknowledges that it has had an opportunity to review ENNV’s filings with the SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and access, review and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Investor has made its own assessment of the relevant tax and other economic considerations relevant to its investment in the Shares.

(e)The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ENNV, the Company or a representative of ENNV or the Company, and the Shares were offered to the Investor solely by direct contact between the Investor and ENNV, the Company or a representative of ENNV or the Company.  The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means.  The Investor acknowledges that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.  The Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ENNV, the Company, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing), other than the representations and warranties of ENNV contained in Section 5 of this Subscription Agreement, in making its investment decision with respect to the purchase of the Shares.

(f)The Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in ENNV’s filings with the SEC.  The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision.  The Investor acknowledges that Investor shall be responsible for any of the Investor’s tax liabilities that may arise as a result of the purchase and ownership of the Shares, and that neither ENNV nor the Company has provided any tax advice or any other representation or guarantee regarding the tax consequences of the purchase and ownership of the Shares.

(g)Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time

 

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and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ENNV.  The Investor acknowledges specifically that a possibility of total loss exists.

(h)In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor and the representations and warranties of ENNV in Section 5.  Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of any of the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing concerning ENNV, the Company, the Transaction, the Transaction Agreement, this Subscription Agreement or the transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares.

(i)The Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment.

(j)The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, and has the requisite power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.

(k)The execution, delivery and performance by the Investor of this Subscription Agreement are within the powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, and will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, partnership or operating agreement or indenture of trust or material agreement for borrowed money, as may be applicable.  The signature of the Investor on this Subscription Agreement is genuine, and the signatory has legal competence and capacity to execute the same or the signatory has been duly authorized to execute the same, and, assuming that this Subscription Agreement constitutes the valid and binding agreement of ENNV, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.

(l)Neither the Investor nor any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is (i) a person named on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identification List, or any other similar list of sanctioned persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control, or any similar list of sanctioned persons administered by the European Union, any individual European Union member state or the United Kingdom (collectively, “Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen,

 

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national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union, any individual European Union member state, or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”).  The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the undersigned is permitted to do so under applicable law.  The Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act.  The Investor also represents that it maintains policies and procedures reasonably designed (i) if the Investor is a portfolio company, investment fund or other investment vehicle, for the screening of its investors against Sanctions Lists and (ii) to ensure compliance with sanctions administered by the United States, the European Union, any individual European Union member state, and the United Kingdom, to the extent applicable to it.  The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor.

(m)If the Investor is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986 (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with ERISA Plans, “Plans”), the Investor represents and warrants that (A) it has not relied on ENNV or any of its affiliates for investment advice as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares, and none of the parties to the Transaction shall at any time be relied on as the Plan’s fiduciary with respect to any decision in connection with the Investor’s investment in the Shares; and (B) its purchase of the Shares will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or any applicable Similar Law.

(n)No disclosure or offering document has been prepared by Credit Suisse Securities (USA) LLC (“Credit Suisse”) or Barclays Capital Inc. (“Barclays”, and together with Credit Suisse, the “Placement Agents” and individually, a “Placement Agent”) or any of their respective affiliates in connection with the offer and sale of the Shares.

(o)None of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to ENNV, the Company or its subsidiaries or

 

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any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by ENNV.

(p)In connection with the issue and purchase of the Shares, neither the Placement Agents, nor any of their respective affiliates, has acted as the Investor’s financial advisor or fiduciary.

(q)The Investor has or has commitments to have and, when required to deliver payment to ENNV pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement.

(r)The Investor acknowledges and is aware that (i) the Placement Agents are acting as ENNV’s placement agents, (ii) Credit Suisse is acting as capital markets advisor to the Company in connection with the Transaction, and (iii) Credit Suisse and/or its affiliates has served in various commercial roles for the Company and its affiliates.  The Investor understands and acknowledges that Credit Suisse’s role as capital markets advisor to the Company may give rise to potential conflicts of interest or the appearance thereof.

(s)The Investor also acknowledges and is aware that Barclays will receive deferred underwriting commissions upon the closing of the Transaction, as disclosed in ENNV’s prospectus relating to its initial public offering dated February 8, 2021 (the “IPO Prospectus”) available at www.sec.gov.  The Investor understands and acknowledges that Barclays’ right to receive such deferred underwriting commissions may give rise to potential conflicts of interest or the appearance thereof.  

7.Registration Rights.

(a)ENNV agrees that, within thirty (30) calendar days following the Closing Date (such deadline, the “Filing Deadline”), ENNV will submit to or file with the SEC a registration statement for a shelf registration on Form S‑1 or Form S‑3 (if ENNV is then eligible to use a Form S‑3 shelf registration) (the “Registration Statement”), in each case, covering the resale of the Shares acquired by the Investor pursuant to this Subscription Agreement that are eligible for registration (determined as of two (2) business days prior to such submission or filing) (the “Registrable Shares”) and ENNV shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 60^th calendar day following the filing date thereof (or, if the SEC notifies ENNV that it will “review” the Registration Statement, the 90th calendar day following the filing date thereof) and (ii) the 10th business day after the date ENNV is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”); provided, however, that ENNV’s obligations to include the Registrable Shares in the Registration Statement are contingent upon Investor furnishing in writing to ENNV such information regarding Investor or its permitted assigns, the securities of ENNV held by Investor and the intended method of disposition of the Registrable Shares (which shall be limited to non-underwritten public offerings) as shall be reasonably requested by ENNV to effect the registration of the Registrable Shares, and Investor shall execute such documents in connection with such registration as ENNV may

 

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reasonably request that are customary of a selling stockholder in similar situations, including providing that ENNV shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement, if applicable, during any customary blackout or similar period or as permitted hereunder; provided that Investor shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Registrable Shares.  Notwithstanding the foregoing, if the SEC prevents ENNV from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 under the Securities Act for the resale of the Shares pursuant to this Section 7 by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Shares which is equal to the maximum number of Shares as is permitted to be registered by the SEC.  In such event, the number of Shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders.  In no event shall the Investor be identified as a statutory underwriter in the Registration Statement without the Investor’s prior written consent.  For as long as the Investor holds Shares, ENNV will use its commercially reasonable efforts to timely file all reports for so long as the condition in Rule 144(c)(1) (or Rule 144(i)(2), if applicable) is required to be satisfied, and provide all customary and reasonable cooperation, necessary to enable the Investor to resell the Shares pursuant to Rule 144 of the Securities Act (in each case, when Rule 144 of the Securities Act becomes available to the Investor).  Any failure by ENNV to file the Registration Statement by the Filing Deadline or to effect such Registration Statement by the Effectiveness Deadline shall not otherwise relieve ENNV of its obligations to file or effect the Registration Statement as set forth above in this Section 7.

(b)At its expense ENNV shall:

(i)except for such times as ENNV is permitted hereunder to suspend the use of the Prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which ENNV determines to obtain, continuously effective with respect to the Investor, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earlier of the following:  (A) Investor ceases to hold any Registrable Shares, (B) the date all Registrable Shares held by Investor may be sold without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and without the requirement for ENNV to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), and (C) three (3) years from the date of effectiveness of the Registration Statement.  The period of time during which ENNV is required hereunder to keep a Registration Statement effective is referred to herein as the “Registration Period”;

(ii)during the Registration Period, advise Investor, as expeditiously as possible and in any event within two (2) business days:

(1)when a Registration Statement or any post-effective amendment thereto has become effective;

 

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(2)of any request by the SEC for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information;

(3)after it shall receive notice or obtain knowledge thereof, of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;

(4)of the receipt by ENNV of any notification with respect to the suspension of the qualification of the Registrable Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

(5)subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or Prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.

Notwithstanding anything to the contrary set forth herein, ENNV shall not, when so advising the Investor of such events, provide the Investor with any material, nonpublic information regarding ENNV other than to the extent that providing notice to the Investor of the occurrence of the events listed in (1) through (5) above constitutes material, nonpublic information regarding ENNV;

(iii)during the Registration Period, use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;

(iv)during the Registration Period, upon the occurrence of any event contemplated in Section 7(b)(ii)(3) above, except for such times as ENNV is permitted hereunder to suspend, and has suspended, the use of a Prospectus forming part of a Registration Statement, ENNV shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related Prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Shares included therein, such Prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(v)during the Registration Period, use its commercially reasonable efforts to cause all Registrable Shares to be listed on each securities exchange or market, if any, on which the shares of common stock issued by ENNV have been listed;

(vi)during the Registration Period, use its commercially reasonable efforts to allow the Investor to review disclosure regarding the Investor in the Registration Statement; and

 

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(vii)during the Registration Period, otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Investor, consistent with the terms of this Subscription Agreement, in connection with the registration of the Registrable Shares and to enable the Investor to sell its Shares under Rule 144.

(c)Notwithstanding anything to the contrary in this Subscription Agreement, ENNV shall be entitled to delay the filing or effectiveness of, or suspend the use of, the Registration Statement (x) if it determines that in order for the Registration Statement not to contain a material misstatement or omission, (i) an amendment thereto would be needed to include information that would at that time not otherwise be required in a current, quarterly, or annual report under the Exchange Act or (ii) the negotiation or consummation of a transaction by ENNV or its subsidiaries is pending or an event has occurred, which negotiation, consummation or event ENNV’s board of directors reasonably believes, following consultation with counsel, would require additional disclosure by ENNV in the Registration Statement of material information that ENNV has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable determination of ENNV’s board of directors, following consultation with counsel, to cause the Registration Statement to fail to comply with applicable disclosure requirements, (y) during any customary blackout or similar period or as permitted hereunder and (z) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of ENNV’s Annual Report on Form 10-K for its first completed fiscal year following the Closing (each such circumstance, a “Suspension Event”); provided, however, that ENNV may not delay or suspend the Registration Statement on more than two occasions or for more than sixty (60) consecutive calendar days, or more than ninety (90) total calendar days in each case during any twelve-month period.  Upon receipt of any written notice from ENNV of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in light of the circumstances under which they were made, in the case of the Prospectus) not misleading, the Investor agrees that (i) it will immediately discontinue offers and sales of the Registrable Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until the Investor receives copies of a supplemental or amended Prospectus (which ENNV agrees to promptly prepare and deliver) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by ENNV that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by ENNV unless otherwise required by applicable law, rule, regulation or in connection with any legal proceeding or regulatory request.  If so directed by ENNV, the Investor will deliver to ENNV or, in Investor’s sole discretion destroy, all copies of the Prospectus covering the Registrable Shares in Investor’s possession; provided, however, that this obligation to deliver or destroy all copies of the Prospectus covering the Registrable Shares shall not apply (A) to the extent the Investor is required to retain a copy of such Prospectus (1) to comply with applicable legal, regulatory, self-regulatory or professional requirements or (2) in accordance with a bona fide pre-existing document retention policy or (B) to copies stored electronically on archival servers as a result of automatic data back-up.

 

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(d)Indemnification.

(i)ENNV agrees to indemnify, to the extent permitted by law, the Investor (to the extent a seller under the Registration Statement), its directors, officers, partners, managers, members, stockholders, advisors and each person who controls the Investor (within the meaning of the Securities Act), and each of the directors, officers, partners, managers, members, stockholders, or advisors of such controlling person, to the fullest extent permitted by law, against all losses, claims, damages, liabilities and reasonable and documented out‑of‑pocket expenses (including reasonable and documented attorneys’ fees of one law firm) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus included in any Registration Statement (“Prospectus”) or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading, except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to ENNV by or on behalf of such Investor expressly for use therein.

(ii)In connection with any Registration Statement in which the Investor is participating, the Investor shall furnish (or cause to be furnished) to ENNV in writing such information and affidavits as ENNV reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify ENNV, its directors and officers and each person or entity who controls ENNV (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading, but only to the extent that such untrue statement or omission is contained (or not contained in, in the case of an omission) in any information or affidavit so furnished in writing by on behalf of the Investor expressly for use therein; provided, however, that the liability of the Investor shall be several and not joint with any Other Investor and shall be in proportion to and limited to the net proceeds received by the Investor from the sale of Registrable Shares giving rise to such indemnification obligation.

(iii)Any person or entity entitled to indemnification herein shall (A) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (B) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party.  If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be

 

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unreasonably withheld).  An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.  No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

(iv)The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person or entity of such indemnified party and shall survive the transfer of securities.

(v)If the indemnification provided under this Section 7(d) from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations; provided, however, that the liability of the Investor shall be limited to the net proceeds received by such Investor from the sale of Registrable Shares giving rise to such indemnification obligation.  The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action.  The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 7(d)(i), (ii) and (iii) above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 7(d)(v) from any person or entity who was not guilty of such fraudulent misrepresentation.

(e)The Investor may deliver written notice (an “Opt-Out Notice”) to ENNV requesting that the Investor not receive notices from ENNV otherwise required by this Section 7; provided, however, that the Investor may later revoke any such Opt-Out Notice in writing.  

 

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Following receipt of an Opt-Out Notice from the Investor (unless subsequently revoked), (i) ENNV shall not deliver any such notices to the Investor and the Investor shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to the Investor’s intended use of an effective Registration Statement, the Investor will notify ENNV in writing at least two (2) business days in advance of such intended use, and if a notice of a Suspension Event was previously delivered (or would have been delivered but for the provisions of this Section 7(e)) and the related suspension period remains in effect, ENNV will so notify the Investor, within one (1) business day of the Investor’s notification to ENNV, by delivering to the Investor a copy of such previous notice of Suspension Event, and thereafter will provide the Investor with the related notice of the conclusion of such Suspension Event promptly following its availability.

(f)The Company shall instruct its transfer agent to remove the legend described in Section 6(b) from the book entries representing the Shares no later than the second day (or, if shorter, the then-effective settlement period for securities transactions), in each case, following (i) the date on which the Registration Statement is declared effective or (ii) at any time following the first date on which of the Shares may be sold without registration under the applicable requirements of the Securities Act.  ENNV shall be responsible for the fees of its transfer agent and all DTC fees associated with such issuance.

8.Short Sales.  The Investor agrees that, from the date of this Subscription Agreement, none of the Investor, its controlled affiliates, or any person or entity acting on behalf of Investor or any of its controlled affiliates or pursuant to any understanding with Investor or any of its controlled affiliates will engage in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which could reasonably be expected to lead to or result in, a sale, loan, pledge or other disposition or transfer (whether by the Investor or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any securities of ENNV prior to the Closing, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of securities of ENNV, in cash or otherwise, or to publicly disclose the intention to undertake any of the foregoing; provided that, for the avoidance of doubt, this Section 8 shall not apply to any sale (including the exercise of any redemption right) of securities of ENNV (a) held by the Investor, its controlled affiliates or any person or entity acting on behalf of the Investor or any of its controlled affiliates prior to the execution of this Subscription Agreement or later issued pursuant to the Transaction Agreement or (b) purchased by the Investor, its controlled affiliates or any person or entity acting on behalf of the Investor or any of its controlled affiliates in open market transactions after the execution of this Subscription Agreement.

9.Termination.  This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) such date and time as the Transaction Agreement is terminated in accordance with its terms prior to the closing of the Transaction, (b) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement, (c) if any of the conditions to Closing set forth in Section 3 of this Subscription Agreement are not satisfied or waived by the party entitled to waive such condition at the Closing and, as a result thereof, the transactions contemplated by this

 

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Subscription Agreement will not be or are not consummated at the Closing and (d) February 18, 2022 if the closing of the Transaction has not occurred on or before such date; provided that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from any such willful breach.  ENNV shall notify the Investor of the termination of the Transaction Agreement promptly, and in any event within two (2) business days, after the termination of such agreement.  Upon the termination of this Subscription Agreement in accordance with this Section 9, any monies paid by the Investor to ENNV in connection herewith shall be promptly (and in any event within one business day after such termination) returned to the Investor.

10.Trust Account Waiver.  The Investor acknowledges that ENNV is a blank check company.  The Investor further acknowledges that, as described in the IPO Prospectus, substantially all of ENNV’s assets consist of the cash proceeds of ENNV’s initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in the trust account for the benefit of ENNV, certain of its public stockholders and the underwriters of ENNV’s initial public offering (the “Trust Account”) pursuant to a trust agreement (the “Trust Agreement”).  The Investor acknowledges that it has been advised by ENNV that, except with respect to interest earned on the funds held in the Trust Account that may be released to ENNV to pay its franchise tax, income tax or other tax obligations, the Trust Agreement provides that cash in the Trust Account may be disbursed only (a) if ENNV completes an initial business combination, then to those persons and in such amounts as required by the terms and conditions of such transaction, (b) if ENNV fails to complete an initial business combination within the allotted time period and liquidates, subject to the terms of the Trust Agreement and applicable law, to ENNV in limited amounts to permit ENNV to pay applicable taxes and the costs and expenses of its liquidation and dissolution, and then ENNV’s public stockholders, and (c) if ENNV holds a stockholder vote to amend ENNV’s amended and restated certificate of incorporation (A) to modify the substance or timing of ENNV’s obligation to provide holders of the Class A Common Stock the right to have their shares redeemed in connection with ENNV’s initial business combination or to redeem one hundred percent (100%) of the outstanding shares of Class A Common Stock if ENNV does not complete an initial business combination within the allocated time period or (B) with respect to any other provision relating to the rights of holders of Class A Common Stock or pre-initial business combination activity, then for the redemption of any Class A Common Stock properly tendered in connection with such vote.  For and in consideration of ENNV entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, the Investor hereby irrevocably waives any right, title, interest or claim of any kind it has or may have in the future in or to any monies in the Trust Account and agrees not to seek recourse against the Trust Account or any funds distributed therefrom as a result of, or arising out of, this Subscription Agreement; provided, however, that nothing in this Section 10 shall (a) serve to limit or prohibit Investor’s right, title, interest or claim to the Trust Account by virtue of the Investor’s record or beneficial ownership of Class A Common Stock acquired by any means other than pursuant to this Subscription Agreement or (b) be deemed to limit Investor’s right to exercise any redemption rights with respect to any Class A Common Stock owned by Investor.

11.Miscellaneous.

 

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(a)Neither this Subscription Agreement nor any rights that may accrue to the Investor hereunder (other than the Shares acquired hereunder, if any) may be transferred or assigned, other than an assignment to (i) if Investor is a portfolio company, investment fund or other investment vehicle, any fund or account managed by Investor or the same investment manager as the Investor or an affiliate thereof, (ii) in the event that Investor is a corporation, any parent company or wholly-owned subsidiary or affiliate of the Investor, or (iii) any third party with the prior written consent of ENNV, in each case, subject to, if such transfer or assignment is prior to the Closing, such transferee or assignee, as applicable, executing a joinder to this Subscription Agreement or a separate subscription agreement in substantially the same form as this Subscription Agreement, including with respect to the Subscription Amount and other terms and conditions, provided, that, in the case of any such transfer or assignment, the initial party to this Subscription Agreement shall remain bound by its obligations under this Subscription Agreement in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the purchase of Shares contemplated hereby.  Neither this Subscription Agreement nor any rights that may accrue to ENNV hereunder or any of ENNV’s obligations may be transferred or assigned other than pursuant to the Transaction.

(b)ENNV may request from the Investor such additional information as ENNV may deem reasonably necessary to evaluate the eligibility of the Investor to acquire the Shares and in connection with the inclusion of the Shares in the Registration Statement, and the Investor shall provide such information as may reasonably be requested, to the extent readily available and to the extent consistent with its internal policies and procedures, and provided that ENNV agrees to keep any such information provided by the Investor confidential, except as may be required by applicable law, rule, regulation or in connection with any legal proceeding or regulatory request.  The Investor acknowledges that ENNV will file a form of this Subscription Agreement with the SEC as an exhibit to a current or periodic report or a registration statement of ENNV.

(c)The Investor acknowledges that ENNV and the Placement Agents (as third party beneficiary with the right to enforce Section 5, Section 6, Section 11 (to the extent applicable to it), and Section 12 hereof on its own behalf and not, for the avoidance of doubt, on behalf of ENNV or the Company) will rely on the acknowledgments, understandings, agreements, representations and warranties of the Investor contained in this Subscription Agreement.  Prior to the Closing, the Investor agrees to promptly notify ENNV and the Placement Agents if any of the acknowledgments, understandings, agreements, representations and warranties of the Investor set forth herein are no longer accurate.

(d)ENNV, the Placement Agents (to the extent set forth in Section 11(c)) and the Investor are each entitled to rely upon this Subscription Agreement and each is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby, subject to the terms and condition of this Subscription Agreement. In furtherance of and without limitation of the foregoing, each of the Placement Agents are intended third-party beneficiaries of the representations and warranties of ENNV and the Investor contained in this Subscription Agreement.

 

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(e)All of the representations and warranties contained in this Subscription Agreement shall survive the Closing.  All of the covenants and agreements made by each party hereto in this Subscription Agreement shall survive the Closing.

(f)This Subscription Agreement may not be modified, waived or terminated (other than pursuant to the terms of Section 9 above) except by an instrument in writing, signed by each of the parties hereto.  No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the parties and third party beneficiaries hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

(g)This Subscription Agreement (including the schedule hereto) constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.  Except as set forth in Section 7(b), Section 11(c) and Section 11(d) with respect to the persons referenced therein, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and assigns.

(h)Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.

(i)If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.

(j)This Subscription Agreement may be executed in one or more counterparts (including by electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document.  All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.

(k)The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached.  It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement, without posting a bond or undertaking and without proof of damages, to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise.

 

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(l)THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, TO THE EXTENT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR ANY SUCH DOCUMENT THAT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH A DELAWARE STATE OR FEDERAL COURT.  THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN THIS SECTION 11(l) or SECTION 14 OF THIS SUBSCRIPTION AGREEMENT OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.  THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD OTHERWISE REQUIRED THE APPLICATION OF THE LAW OF ANY OTHER STATE.

(m)EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY; AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 11(m).

 

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12.Non-Reliance and Exculpation.  The Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) with respect to the purchase of the Shares pursuant to this Subscription Agreement, other than the statements, representations and warranties of ENNV expressly contained in Section 5 of this Subscription Agreement, in making its investment or decision to purchase the Shares.  The Investor acknowledges and agrees that none of (i) any Other Investor pursuant to any Other Subscription Agreement related to the private placement of the Shares (including the Other Investor’s respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), (ii) to the maximum extent permitted by applicable law, the Placement Agents, their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, (iii) any other party to the Transaction Agreement (other than ENNV), or (iv) any affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of ENNV, the Company or any other party to the Transaction Agreement shall be liable to the Investor pursuant to this Subscription Agreement related to the private placement of the Shares, the negotiation hereof, or the transactions contemplated hereby, for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares.

13.Press Releases.  ENNV shall, by 9:00 a.m., New York City time, on the first business day immediately following the date of this Subscription Agreement, issue one or more press releases or furnish or file with the SEC a Current Report on Form 8‑K (collectively, the “Disclosure Document”) disclosing, to the extent not previously publicly disclosed, the PIPE Investment, all material terms of the Transaction and any other material, non-public information that ENNV has provided to the Investor at any time prior to the filing of the Disclosure Document.  From and after the disclosure of the Disclosure Document, to the knowledge of ENNV, the Investors shall not be in possession of any material, non-public information received from ENNV or any of its officers, directors or employees.  All press releases or other public communications relating to the transactions contemplated hereby between ENNV and the Investor, and the method of the release for publication thereof, shall be subject to the prior approval of (i) ENNV, and (ii) to the extent such press release or public communication references the Investor or its affiliates or investment advisers by name, the Investor.  The restriction in this Section 13 shall not apply to the extent the public announcement is required by applicable securities law, any governmental authority or stock exchange rule; provided, that in such an event, the applicable party shall use its commercially reasonable efforts to consult with the other party in advance as to its form, content and timing.

14.Notices.  All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email (in each case in this clause (iv), solely if receipt is confirmed, but excluding any automated reply, such as an out-of-office notification), addressed as follows:

 

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If to the Investor, to the address provided on the Investor’s signature page hereto.

If to ENNV, to:

 

 

with copies to (which shall not constitute notice), to:

 

 

with copies to (which shall not constitute notice), to:

 

 

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or to such other address or addresses as the parties may from time to time designate in writing.  Copies delivered solely to outside counsel shall not constitute notice.

[SIGNATURE PAGES FOLLOW]

 

 

 

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IN WITNESS WHEREOF, the Investor has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.

 

 

You must pay the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account specified by ENNV in the Closing Notice.

 

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IN WITNESS WHEREOF, ENNV has accepted this Subscription Agreement as of the date set forth below.

 

 

Date:  ________________, 2021

 

 

 

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SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF THE INVESTOR

Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person.  The Investor has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to the Investor and under which the Investor accordingly qualifies as an “accredited investor.”

This page should be completed by the Investor
and constitutes a part of the Subscription Agreement.

 

[Schedule A to Subscription Agreement]

 

Exhibit 10.2

 

ECP Environmental Growth Opportunities Corp.

40 Beechwood Road

Summit, New Jersey 07901

 

July 18, 2021

Goldman Sachs Asset Management

200 West Street, 3^rd Floor

New York, NY 10282

Attention: Kyri Loupis

 

Re: Forward Purchase Agreement – Side Letter

Reference is made to that certain Forward Purchase Agreement, dated as of January 24, 2021, by and among ECP Environmental Growth Opportunities Corp., a Delaware corporation (the “Company”), ENNV Holdings, LLC, a Delaware limited liability company (the “Sponsor”), and Goldman Sachs Asset Management, L.P., in its capacity as investment adviser on behalf of its clients (the “Purchaser” and, together with the Company and the Sponsor, each a “Party” and, collectively, the “Parties”), as amended by that certain First Amendment to Forward Purchase Agreement, dated as of January 31, 2021, by and among the Parties (as so amended, the “Forward Purchase Agreement”). Capitalized terms used but not defined herein shall have the meanings set forth for such terms in the Forward Purchase Agreement.

 

In accordance with Section 4(c)(iv) of the Forward Purchase Agreement, the Company has provided written notice to the Purchaser of the Company’s bona fide intention to enter into a definitive agreement with Fast Radius, Inc. (“Fast Radius”), a Delaware corporation, relating to a Business Combination between the Company and Fast Radius (the “FR Business Combination”) and has provided the Purchaser with applicable materials and information in connection with the proposed FR Business Combination.

 

This letter (this “Letter Agreement”) supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof solely with respect to the FR Business Combination, and for the avoidance of doubt, does not apply to any other Business Combination that the Company may pursue should it not consummate the FR Business Combination.

 

1. Terms of Agreement.  

 

(a) In accordance with Section 4(c)(iv) of the Forward Purchase Agreement (but for the avoidance of doubt without amending, waiving or otherwise limiting the last sentence of Section 3(c)(iv) of the Forward Purchase Agreement), the Purchaser, in its capacity as a party to the Forward Purchase Agreement, hereby irrevocably consents to its commitment to purchase twenty-five million dollars ($25,000,000) of Forward Purchase Units in connection with the FR Business Combination, and the Company hereby agrees to issue and sell such Forward Purchase Units to the Purchaser, at a price of $10.00 per Forward Purchase Unit substantially concurrently with the closing of the FR Business Combination. The Parties agree that the Purchaser shall not be required

 

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to deliver the Purchase Price until immediately after the Forward Purchase Units have been issued by the Company to the Purchaser in accordance with the terms of the Forward Purchase Agreement.

 

(b) Pursuant to Section 7(f) of the Forward Purchase Agreement, each of the Company and the Sponsor hereby waives the Purchaser’s obligation to forfeit Purchaser Shares under the circumstances contemplated by the last sentence of Section 2(c) of the Forward Purchase Agreement in connection with, and conditioned upon, the closing of the FR Business Combination.  For the avoidance of doubt, if the closing of the FR Business Combination does not occur, the Purchaser shall not be required to forfeit Purchaser Shares under the circumstances contemplated by the last sentence of Section 2(c) of the Forward Purchase Agreement as a result of such failure to close the FR Business Combination, and the Parties will remain subject to the last sentence of Section 2(c) of the Forward Purchase Agreement in connection with any future Business Combination.

 

2. References.  All references in the Forward Purchase Agreement to the “Agreement” shall be deemed to refer to the Forward Purchase Agreement, as amended and modified by this Letter Agreement.

 

3. Entire Agreement. This Letter Agreement, together with the Forward Purchase Agreement and any documents, instruments and writing that are delivered pursuant hereto or referenced herein, constitute the entire agreement and understanding of the Parties in respect of its subject matter and supersedes all prior understandings, agreements or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.

 

4. No Other Amendments. This Letter Agreement shall not constitute an amendment or waiver of any provisions of the Forward Purchase Agreement not expressly referred to herein.  Except as expressly amended hereby, the Forward Purchase Agreement is and shall remain in full force and effect in accordance with the terms thereof.

 

5. Miscellaneous.

 

(a) Governing Law. This Letter Agreement and the rights and obligations of the Parties shall be construed in accordance with and governed by the laws of Delaware applicable to contracts wholly performed within the borders of such state, without giving effect to the conflict of law principles thereof.

 

(b) Jurisdiction. The Parties (i) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Letter Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Letter Agreement except in state courts of Delaware and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, 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 suit, action or proceeding is brought in an inconvenient forum, that the venue

 

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of the suit, action or proceeding is improper or that this Letter Agreement or the subject matter hereof may not be enforced in or by such court.

  

(c) Severability. In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Letter Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Letter Agreement shall nevertheless remain in full force and effect.

 

(d) Execution. This Letter Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each Party and delivered to the other Party, it being understood that both Parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.

 

(e) Termination. In the event that a definitive agreement relating to the FR Business Combination is not entered into by the Company and Fast Radius on or before August 31, 2021, or if such definitive agreement is entered into but subsequently terminated prior to the closing of the FR Business Combination, this Letter Agreement shall automatically terminate and be of no further force and effect.

 

[Signature pages follow]

 

 

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IN WITNESS WHEREOF, the undersigned have executed this Letter Agreement to be effective as of the date first set forth above.

 

 

 

[Signature Page to Letter Agreement]

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[Signature Page to Letter Agreement]

Exhibit 10.3

 

AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of July 18, 2021, is made and entered into by and among ECP Environmental Growth Opportunities Corp., a Delaware corporation (the “Company”), ENNV Holdings, LLC, a Delaware limited liability company (the “Sponsor”), Goldman Sachs Asset Management, L.P., in its capacity as investment adviser on behalf of its clients (“GSAM”), Tracy B. McKibben, Kathryn E. Coffey, Richard Burke, and David Lockwood (together with the Sponsor, GSAM, Ms. McKibben, Ms. Coffey and Mr. Burke, the “ENNV Holders”) and the equityholders designated as Legacy Fast Radius Holders on Schedule A hereto (collectively, the “Legacy Fast Radius Holders”). The ENNV Holders, the Legacy Fast Radius Holders and any Person (as defined herein) who hereafter becomes a party to this Agreement pursuant to Section 5.02 of this Agreement, a “Holder” and collectively the “Holders.”

RECITALS

WHEREAS, the Company and the ENNV Holders are party to that certain Registration Rights Agreement, dated as of February 8, 2021 (the “Original Registration Rights Agreement”), pursuant to which the Company granted the ENNV Holders certain registration rights with respect to certain securities of the Company;

WHEREAS, the Company, ENNV Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Fast Radius, Inc., a Delaware corporation (“Legacy Fast Radius”), are party to that certain Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), pursuant to which, among other things, Merger Sub will merge with and into Legacy Fast Radius (the “Merger” and, together with the other transactions contemplated by the Merger Agreement, the “Business Combination”), with Legacy Fast Radius surviving the Merger as a wholly owned subsidiary of the Company;

WHEREAS, as of the date hereof, the ENNV Holders are the holders of (i) all of the outstanding shares of the Class B common stock, par value $0.0001 per share, of the Company (the “Founder Shares”), which, upon the consummation of the Business Combination, will be automatically converted into shares of Class A common stock, par value $0.0001 per share, of the Company (“Common Stock”), and (ii) all of the outstanding Private Placement Warrants (as defined herein);

WHEREAS, the Company, the Sponsor and certain members of the management team and/or board of directors of the Company (the “Board”) are party to that certain letter agreement, dated as of the date hereof (the “Insider Letter”), pursuant to which the Sponsor is entitled to receive additional shares of Common Stock (the “Sponsor Earn-Out Shares”) upon the achievement of certain performance vesting requirements following the closing of the Merger (the “Closing”);

WHEREAS, the Company, the Sponsor and GSAM are party to that certain Forward Purchase Agreement, dated as of January 24, 2021, as amended by that certain First Amendment to Forward Purchase Agreement, dated as of January 31, 2021, pursuant to which GSAM agreed to purchase, and the Company agreed to issue and sell, up to an aggregate maximum amount of

 

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$50,000,000 of units (the “Forward Purchase Units”), each consisting of one share of Common Stock (collectively, the “Forward Purchase Shares”) and one-quarter of one redeemable warrant (collectively, the “Forward Purchase Warrants”), at a price of $10.00 per unit in a private placement that will close simultaneously with the closing of the Business Combination;

WHEREAS, in order to finance the Company’s transaction costs in connection with the Business Combination, the Sponsor or certain of the Company’s officers or directors may, but are not obligated to, loan the Company funds as the Company may require, up to $1,500,000 of which may be convertible into warrants at a price of $1.50 per warrant at the option of the lender upon closing of the Business Combination (the “Working Capital Warrants”); and

WHEREAS, pursuant to the terms of the Merger Agreement, the Legacy Fast Radius Holders will (i) receive shares of Common Stock in accordance with the terms of the Merger Agreement at the Closing (the “Merger Shares”) and (ii) be entitled to receive additional shares of Common Stock (the “Legacy Fast Radius Earn-Out Shares” and, together with the Sponsor Earn-Out Shares, the “Earn-Out Shares”) upon the achievement of certain performance vesting requirements following the Closing;

WHEREAS, pursuant to Section 5.05 of the Original Registration Rights Agreement, the provisions, covenants and conditions set forth therein may be amended or modified upon the written consent of the Company and the holders of at least a majority-in-interest of the Registrable Securities (as defined in the Original Registration Rights Agreement) at the time in question; and

WHEREAS, the Company and the ENNV Holders, which hold all of the Registrable Securities under the Original Registration Rights Agreement, desire to amend and restate the Original Registration Rights Agreement pursuant to Section 5.05 thereof in order to provide the Holders with registration rights with respect to the Registrable Securities hereunder on the terms set forth herein.

NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

Article I.
Definitions

Section 1.01Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:

“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or principal financial officer of the Company or the Board, after consultation with counsel to the Company, (i) would be required or necessary to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain a Misstatement, (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (iii) the Company has a bona fide business purpose for not making such information public.

 

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“Allowed Delay” shall have the meaning given in Section 3.05(b).

“Aggregate Assumed Purchase Price” shall have the meaning given in Section 2.07.

“Agreement” shall have the meaning given in the Preamble hereto.

“Block Trade” means an offering and/or sale of Registrable Securities by any Holder on a coordinated or underwritten basis (whether firm commitment or otherwise) not involving a roadshow or other substantial marketing efforts prior to pricing, including, without limitation, a same day trade, overnight trade or similar transaction.

“Board” shall have the meaning given in the Recitals hereto.

“Business Combination” shall have the meaning given in the Recitals hereto.

“Business Combination Lock-Up Period” shall mean with respect to the Founder Shares, the Merger Shares and the Earn‑Out Shares, the period commencing on the Closing Date and ending on the earlier of (1) six (6) months after the completion of the Business Combination or (2) subsequent to the Business Combination, (w) if the last sale price of the Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any twenty (20) trading days within any thirty (30)‑trading day period commencing at least 150 days after the Business Combination or (x) the date on which the Company completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property.

“Claims” shall have the meaning given in Section 4.01(a).

“Closing” shall have the meaning given in the Recitals hereto.

“Closing Date” shall have the meaning given in the Merger Agreement.

“Commission” shall mean the Securities and Exchange Commission.

“Commission Guidance” shall mean (a) any publicly-available written guidance of the staff of the Commission or any comments, requirements or requests of the staff of the Commission and (b) the Securities Act.

“Common Stock” shall have the meaning given in the Recitals hereto.

“Company” shall have the meaning given in the Preamble hereto.

“Demand Registration” shall have the meaning given in Section 2.02(a).

“Demanding Holder” shall have the meaning given in Section 2.02(a).

“Earn-Out Shares” shall have the meaning given in the Recitals hereto.

“Electing Holder” shall have the meaning given in Section 2.07.

 

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“ENNV Holders” shall have the meaning given in the Preamble hereto.

“Event” shall have the meaning given in Section 2.07.

“Event Date” shall have the meaning given in Section 2.07.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.

“Original Registration Rights Agreement” shall have the meaning given in the Recitals hereto.

“Form S-1 Shelf” shall have the meaning given in Section 2.01(a).

“Form S-3 Shelf” shall have the meaning given in Section 2.01(a).

“Forward Purchase Shares” shall have the meaning given in the Recitals hereto.

“Forward Purchase Units” shall have the meaning given in the Recitals hereto.

“Forward Purchase Warrants” shall have the meaning given in the Recitals hereto.

“Founder Shares” shall have the meaning given in the Recitals hereto and shall be deemed to include the shares of Common Stock issuable upon conversion thereof.

“GSAM” shall have the meaning given in the Preamble hereto.

“Holder” or “Holders” shall have the meaning given in the Preamble hereto.

“Insider Letter” shall have the meaning given in the Recitals hereto.

“Legacy Fast Radius” shall have the meaning given in the Recitals hereto.

“Legacy Fast Radius Holders” shall have the meaning given in the Preamble hereto.

“Legacy Fast Radius Earn-Out Shares” shall have the meaning given in the Recitals hereto.

“Lock-Up Periods” shall mean the Business Combination Lock-Up Period and the Private Placement Lock-Up Period.

“Maximum Number of Securities” shall have the meaning given in Section 2.03(b).

“Merger” shall have the meaning given in the Recitals hereto.

“Merger Agreement” shall have the meaning given in the Recitals hereto.

“Merger Shares” shall have the meaning given in the Recitals hereto.

 

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“Merger Sub” shall have the meaning given in the Recitals hereto.

“Minimum Takedown Threshold” shall have the meaning given in Section 2.03(a).

“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements therein (in the case of any Prospectus or any preliminary Prospectus, in the light of the circumstances under which they are made), not misleading.

“Other Coordinated Offering” shall have the meaning given in Section 2.05(a).

“Permitted Transferees” shall mean any Person to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities prior to the expiration of the applicable Lock-Up Period, as the case may be, under the Insider Letter, the bylaws of the Company as in effect from time to time or any other applicable agreement between such Holder and the Company, and to any transferee thereafter.

“Person” shall mean any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental agency or instrumentality or other entity of any kind.

“Piggyback Registration” shall have the meaning given in Section 2.04(a).

“PIPE Investment” shall have the meaning given in the Merger Agreement.

“Private Placement Lock-Up Period” shall mean, with respect to Private Placement Warrants that are held by the Sponsor, GSAM or their respective Permitted Transferees, and any shares of Common Stock issued or issuable upon the exercise or conversion of the Private Placement Warrants that are held by the Sponsor, GSAM or their respective Permitted Transferees, the period commencing on the Closing Date and ending thirty (30) days after the Closing Date.

“Private Placement Warrants” shall mean (a) the redeemable warrants to purchase up to 6,266,667 shares of Common Stock that the Sponsor purchased for an aggregate price of $9,400,000 in a private placement that occurred simultaneously with the consummation of the Company’s initial public offering and (b) the redeemable warrants to purchase up to 564,000 shares of Common Stock that the Sponsor purchased for an aggregate price of $846,000 in a private placement that occurred simultaneously with the consummation of the Company’s initial public offering.

“Pro Rata” shall have the meaning given in Section 2.03(b).

“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.

“Registrable Security” shall mean (a) the shares of Common Stock issued or issuable upon the conversion of any Founder Shares, (b) the Private Placement Warrants (including any shares

 

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of Common Stock issued or issuable upon the exercise of any such Private Placement Warrants), (c) the Forward Purchase Units, the Forward Purchase Shares and the Forward Purchase Warrants (including any shares of Common Stock issued or issuable upon the exercise of the Forward Purchase Warrants), (d) the Earn-Out Shares issued or issuable to Holders following the Closing, (e) any shares of Common Stock or any other equity security (including the shares of Common Stock issued or issuable upon the exercise of any other equity security) of the Company (i) held by a Holder immediately following the Closing, including the Merger Shares, or (ii) acquired by a Holder following the Closing Date to the extent that such securities are “restricted securities” (as defined in Rule 144 under the Securities Act) or are otherwise held by an “affiliate” (as defined in Rule 144 under the Securities Act) of the Company, (f) the Working Capital Warrants (including any Common Stock issued or issuable upon the exercise of any such Working Capital Warrants), and (g) any other equity security of the Company issued or issuable with respect to any such share of Common Stock by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities when: (A) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged by the applicable Holder in accordance with such Registration Statement; (B) such securities shall have been otherwise transferred, new certificates for such securities not bearing (or book entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; (D) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) with no volume or other restrictions or limitations; or (E) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

“Registration” shall mean a registration, including an Underwritten Shelf Takedown, effected by preparing and filing a registration statement, Prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.

“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:

 

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“Registration Liquidated Damages” shall have the meaning given in Section 2.07.

“Registration Statement” shall mean any registration statement under the Securities Act that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

“Removed Shares” shall have the meaning given in Section 2.06.

“Requesting Holder” shall have the meaning given in Section 2.02(a).

“Restricted Securities” shall have the meaning given in Section 3.08(a).

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

“Shelf” shall mean the Form S-1 Shelf, a Form S-3 Shelf or any Subsequent Shelf Registration, as the case may be.

“Shelf Registration” means a registration of securities pursuant to a registration statement filed with the SEC in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).

“Sponsor” shall have the meaning given in the Preamble hereto.

“Sponsor Earn-Out Shares” shall have the meaning given in the Recitals hereto.

“Subsequent Shelf Registration” shall have the meaning given in Section 2.02(b).

“Transfer” shall mean the (a) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or

 

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otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).

“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.

“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

“Underwritten Shelf Takedown” shall have the meaning given in Section 2.03(a).

“Withdrawal Notice” shall have the meaning given in Section 2.03(c).

“Working Capital Warrants” shall have the meaning given in the Recitals hereto.

Article II.
Registrations

Section 2.01Shelf Registration.

(a)Filing. The Company shall as soon as reasonably practicable, but in any event within thirty (30) days after the Closing Date, file with the Commission a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) covering, subject to Section 3.04(a), the public resale of all of the Registrable Securities (determined as of two business days prior to such filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to cause such Form S-1 Shelf to be declared effective as soon as practicable after the filing thereof, but in no event later than the earlier of (i) the 90^th calendar day (or as soon as reasonably practicable if the Commission notifies the Company that it will “review” the Registration Statement) following the Closing Date and (ii) the 10^th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. The Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Following the filing of a Form S-1 Shelf, the Company shall use its commercially reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Registration Statement on Form S-3 (the “Form S-3 Shelf”) as soon as reasonably practicable after the Company is eligible to use Form S-3. As soon as practicable following the effective date of a Registration Statement filed pursuant to this Section 2.01(a), but in any event within one (1) business day of such date, the Company shall notify the Holders of the effectiveness of such Registration Statement. When deemed effective, a Registration Statement filed pursuant to this Section 2.01(a) (including the documents incorporated therein by reference) will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain a Misstatement.

 

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(b)Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.05, use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all Registrable Securities (determined as of two business days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated under the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form. As soon as practicable following the effective date of a Subsequent Shelf Registration filed pursuant to this Section 2.01(b), but in any event within one (1) business day of such date, the Company shall notify the Holders of the effectiveness of such Subsequent Shelf Registration. When deemed effective, a Subsequent Shelf Registration filed pursuant to this Section 2.01(b) (including the documents incorporated therein by reference) will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain a Misstatement.

Section 2.02Demand Registration.

(a)Subject to Section 2.03(c) and Section 3.05, at any time and from time to time after the Closing Date, in the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, any Holder that holds at least seven and one-half percent (7.5%) of the Registrable Securities (such Holder, as applicable, a “Demanding Holder”), may make a written demand for Registration for all or part of such Registrable Securities on a Registration Statement, which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand a “Demand Registration”). The Company shall, promptly following the Company’s receipt of a Demand Registration, notify, in writing, all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify the Company, in writing, within five (5) days after the receipt by the Holder of the notice from the Company. For the avoidance of doubt, to the extent a Requesting Holder also separately possesses Demand Registration rights pursuant to this Section 2.02, but is not the Holder who exercises such Demand Registration rights,

 

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the exercise by such Requesting Holder of its rights pursuant to the foregoing sentence shall not count as the exercise by it of one of its Demand Registration rights. Upon receipt by the Company of any such written notification from a Requesting Holder(s) to the Company, subject to Section 2.03(b) below, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and the Company shall use its commercially reasonable efforts to file a Shelf as soon thereafter as practicable, but not more than thirty (30) days following the Company’s receipt of the Demand Registration, for Registration of all Registrable Securities requested by the Demanding Holders and Requesting Holders pursuant to such Demand Registration. The Company shall not be obligated to effect (i) more than two (2) Registrations pursuant to a Demand Registration initiated by the ENNV Holders (other than GSAM), (ii) more than two (2) Registrations pursuant to a Demand Registration initiated by GSAM, (iii) more than two (2) Registrations pursuant to a Demand Registration initiated by the Legacy Fast Radius Holders or (iv) more than four (4) Registrations pursuant to a Demand Registration in the aggregate, in each case, in any 12-month period; provided, however, that a Registration shall not be counted for such purposes unless a Registration Statement that may be available at such time has become effective.

(b)Effective Registration. Notwithstanding any other provision of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (a) the Registration Statement filed with the Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission, (b) all of the Registrable Securities requested by the Requesting Holders to be registered on behalf of the Demanding Holders and the Requesting Holders in such Registration have been sold, in accordance with Section 3.01 of this Agreement and (c) the Company has complied with all of its obligations under this Agreement with respect thereto; provided that if, after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop order or injunction of the Commission, federal or state court or any other governmental agency the Registration Statement with respect to such Registration shall be deemed not to have been declared effective unless and until (i) such stop order or injunction is removed, rescinded or otherwise terminated and (ii) a majority-in-interest of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing, but in no event later than five (5) days after the removal, rescission or other termination of such stop order or injunction, of such election; provided further, that the Company shall not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration by the same Demanding Holder becomes effective or is subsequently terminated.

(c)Underwritten Offering. Subject to the provisions of Section 2.03(b) and Section 3.05, if a majority-in-interest of the Demanding Holders so advise the Company as part of their Demand Registration that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this Section 2.02(c), subject to Section 3.04 and Article IV, shall

 

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enter into an underwriting agreement in customary form with the Company and the Underwriter(s) selected for such Underwritten Offering by a majority-in-interest of the Demanding Holders initiating the Demand Registration, which managing Underwriter or Underwriters shall be subject to approval of the Company, which approval shall not be unreasonably withheld.

Section 2.03Underwritten Shelf Takedown.

(a)Underwritten Offering. At any time and from time to time following the effectiveness of a Shelf required by Section 2.01, any Holder may request to sell all or any portion of its or their Registrable Securities in an Underwritten Offering that is registered pursuant to such Shelf, including a Block Trade or Other Coordinated Offering (each, an “Underwritten Shelf Takedown”); provided, in each case, that the Company shall only be obligated to effect an Underwritten Offering if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder(s) with a total offering price reasonably expected to exceed, in the aggregate, $20,000,000 (the “Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown and the expected price range (net of underwriting discounts and commissions) of such Underwritten Offering. Promptly (but in any event within ten (10) days) after receipt of a request for Underwritten Shelf Takedown, the Company shall give written notice of the Underwritten Shelf Takedown to all other Holders of Registrable Securities and, subject to the provisions of Section 2.03(b), shall include in such Underwritten Shelf Takedown all Registrable Securities with respect to which the Company has received written requests for inclusion therein within five (5) business days after sending such notice to Holders, or, in the case of a Block Trade or Other Coordinated Offering, as provided in Section 2.05. The Company shall enter into an underwriting agreement in a form as is customary in Underwritten Offerings of securities by the Company with the managing Underwriter or Underwriters selected by the Holders requesting such Underwritten Shelf Takedown (which managing Underwriter or Underwriters shall be subject to approval of the Company, which approval shall not be unreasonably withheld) and shall take all such other reasonable actions as are requested by the managing Underwriter or Underwriters in order to expedite or facilitate the disposition of such Registrable Securities in accordance with the terms of this Agreement. In connection with any Underwritten Shelf Takedown contemplated by this Section 2.03, subject to Section 3.04 and Article IV, the underwriting agreement into which each Holder and the Company shall enter shall contain such representations, covenants, indemnities and other rights and obligations as are customary in underwritten offerings of securities by the Company. Notwithstanding any other provision of this Agreement to the contrary, (i) the ENNV Holders (other than GSAM) may demand not more than two (2) Underwritten Shelf Takedowns, (ii) GSAM may demand not more than two (2) Underwritten Shelf Takedowns, (iii) the Legacy Fast Radius Holders may demand not more than two (2) Underwritten Shelf Takedowns and (iv) the Company shall not be obligated to participate in more than four (4) Underwritten Shelf Takedowns in the aggregate, in each case, pursuant to this Section 2.03 in any 12-month period. Notwithstanding anything to the contrary in this Agreement, the Company may effect an Underwritten Shelf Takedown pursuant to any then effective Registration Statement, including a Form S-3, that is then available for such offering.

(b)Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration, in good faith, advises the Company, the Demanding Holders and

 

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the Requesting Holders (if any) in writing, in its or their opinion, that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other Common Stock or other equity securities that the Company desires to sell for its own account and the shares of Common Stock, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other stockholders of the Company, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) (pro rata based on the respective number of Registrable Securities that each Demanding Holder and Requesting Holder (if any) has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the Demanding Holders and Requesting Holders have requested be included in such Underwritten Registration (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), shares of Common Stock or other equity securities that the Company desires to sell for its own account, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), shares of Common Stock or other equity securities of other Persons that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such Persons and that can be sold without exceeding the Maximum Number of Securities.

(c)Withdrawal. A Demanding Holder or a Requesting Holder shall have the right to withdraw all or a portion of its Registrable Securities included in a Demand Registration pursuant to Section 2.02 or an Underwritten Shelf Takedown pursuant to Section 2.03 for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of its intention to so withdraw (a “Withdrawal Notice”) at any time prior to (a) in the case of a Demand Registration not involving an Underwritten Offering, the effectiveness of the applicable Registration Statement, or (b) in the case of any Demand Registration involving an Underwritten Offering or any Underwritten Shelf Takedown, prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Offering or Underwritten Shelf Takedown; provided, however, that upon withdrawal by a majority-in-interest of the Demanding Holders initiating a Demand Registration (or, in the case of an Underwritten Shelf Takedown, withdrawal of an amount of Registrable Securities included by the Holders in such Underwritten Shelf Takedown), the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement or complete the Underwritten Offering, as applicable; provided that any Holder may elect to have the Company continue an Underwritten Shelf Takedown if the Minimum Takedown Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown by the remaining Holders. If withdrawn, such requested Demand Registration or Underwritten Shelf Takedown shall constitute a demand for a Demand Registration or Underwritten Shelf Takedown for purposes of Section 2.02 unless either (i) the Demanding Holders have not previously withdrawn any Demand Registration or (ii) the Demanding Holders reimburse the Company for all Registration Expenses

 

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with respect to such Underwritten Shelf Takedown; provided that, if a Legacy Fast Radius Holder, an ENNV Holder (other than GSAM) or GSAM elects to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten Shelf Takedown demanded by such Legacy Fast Radius Holder, ENNV Holder (other than GSAM) or GSAM, as applicable, for purposes of Section 2.03. Following the receipt of any Withdrawal Notice, the Company shall promptly forward such Withdrawal Notice to any other Holders that had elected to participate in such Underwritten Shelf Takedown. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration or an Underwritten Shelf Takedown prior to its and including its withdrawal under this Section 2.03(c), other than if a Demanding Holder elects to pay such Registration Expenses pursuant to the second sentence of this Section 2.03(c).

Section 2.04Piggyback Registration.

(a)Piggyback Rights. If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of stockholders of the Company (or by the Company and by the stockholders of the Company including, without limitation, pursuant to Article II hereof), other than a Registration Statement (or any registered offering with respect thereto) (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing stockholders or pursuant to a Registration Statement on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (iii) for an offering of debt that is convertible into equity securities of the Company, (iv) filed in connection with an “at-the-market” offering or (v) for a dividend reinvestment plan or a rights offering, then the Company shall give written notice of such proposed filing to all of the Holders of Registrable Securities (excluding the Sponsor with respect to the Registrable Securities distributed by the Sponsor to its members following the expiration of the Lock-Up Periods, as applicable) as soon as practicable but not less than ten (10) days (or, in the case of a Block Trade, three (3) business days) before the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, (including whether such registration will be pursuant to a shelf registration statement), and the proposed price and name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within five (5) days after receipt of such written notice (or in the case of a Block Trade, within one (1) business day) (such Registration a “Piggyback Registration”). The Company shall, in good faith, cause such Registrable Securities identified in a Holder’s response notice described in the foregoing sentence to be included in such Piggyback Registration and shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering, if any, to permit the Registrable Securities requested by the Holders pursuant to this Section 2.04(a) to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company or Company stockholder(s) for whose account such Registration Statement is to be filed included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All such Holders proposing to

 

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distribute their Registrable Securities through an Underwritten Offering under this Section 2.04(a), subject to Section 3.04 and Article IV, shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company or the Holders as provided in Section 2.02(c) or Section 2.03(a). For purposes of this Section 2.04, the filing by the Company of an automatic shelf registration statement for offerings pursuant to Rule 415(a) that omits information with respect to any specific offering pursuant to Rule 430B shall not trigger any notification or participation rights hereunder until such time as the Company amends or supplements such Registration Statement to include information with respect to a specific offering of securities (and such amendment or supplement shall trigger the notice and participation rights provided for in this Section 2.04).

(b)Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that, in its or their opinion, the dollar amount or number of shares of Common Stock that the Company desires to sell, taken together with (i) the shares of Common Stock, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with Persons other than the Holders of Registrable Securities hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to this Section 2.04, and (iii) the shares of Common Stock, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other stockholders of the Company, exceeds the Maximum Number of Securities, then:

(i)If the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (A) first, shares of Common Stock or other equity securities that the Company desires to sell for its own account, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.04(a) hereof, Pro Rata, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), shares or Common Stock, if any, as to which Registration has been requested pursuant to written contractual piggyback registration rights of other stockholders of the Company, which can be sold without exceeding the Maximum Number of Securities;

(ii)If the Registration is pursuant to a request by Persons other than the Holders of Registrable Securities, then the Company shall include in any such Registration (A) first, Common Stock or other equity securities, if any, of such requesting Persons, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.04(a), pro rata based on the number of Registrable Securities that each Holder has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the Holders have requested be included in such Underwritten Registration, which can be sold without exceeding the

 

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Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), Common Stock or other equity securities that the Company desires to sell for its own account, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), Common Stock or other equity securities for the account of other Persons that the Company is obligated to register pursuant to separate written contractual arrangements with such Persons, which can be sold without exceeding the Maximum Number of Securities.

(c)Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.03(c)) shall have the right to withdraw all or any portion of its Registrable Securities in a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw such Registrable Securities from such Piggyback Registration prior to (a) in the case of a Piggyback Registration not involving an Underwritten Offering or Underwritten Shelf Takedown, the effectiveness of the applicable Registration Statement, or (b), in the case of any Piggyback Registration involving an Underwritten Offering or any Underwritten Shelf Takedown, prior to the filing of the applicable “red herring” prospectus or prospectus supplement used to market such Underwritten Offering or Underwritten Shelf Takedown. The Company (whether on its own good faith determination or as the result of a request for withdrawal by Persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than Section 2.03(c)), the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to and including its withdrawal under this Section 2.04(c).

(d)Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to this Section 2.04 shall not be counted as a Registration pursuant to an Underwritten Shelf Takedown effected under Section 2.03(a).

Section 2.05Block Trades; Other Coordinated Offerings.

(a)Notwithstanding any other provisions of this Article II, and subject to Section 3.05, at any time and from time to time when an effective Shelf is on file with the SEC and effective, if a Holder wishes to engage in (a) a Block Trade or (b) an “at the market” or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal in each case with a total offering price reasonably expected to exceed, in the aggregate, either (x) $50,000,000 or (y) all remaining Registrable Securities held by such Holder (an “Other Coordinated Offering”), then notwithstanding any time periods provided for in this Article II, such Holder shall provide written notice to the Company at least five (5) business days prior to the day such Block Trade or Other Coordinated Offering is to commence and the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Block Trade or Other Coordinated Offering; provided that the Holders engaging in such Block Trade or Other Coordinated Offering shall use their commercially reasonable efforts to work with the Company

 

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and any Underwriters or placement agents or sales agents (including by disclosing the maximum number of Registrable Securities proposed to be the subject of such Block Trade or Other Coordinated Offering) in order to facilitate preparation of the Registration Statement, Prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering and any related due diligence and comfort procedures. In the event of a Block Trade, and after consultation with the Company, the Demanding Holders and the Requesting Holders (if any) shall determine the Maximum Number of Securities, the underwriter or underwriters (which shall consist of one or more reputable nationally recognized investment banks) and share price of such offering.

(b)Prior to the filing of the applicable “red herring” Prospectus or Prospectus supplement used in connection with a Block Trade or Other Coordinated Offering, a majority-in-interest of the Demanding Holders initiating such Block Trade or Other Coordinated Offering shall have the right to submit a Withdrawal Notice to the Company and the Underwriter or Underwriters or placement agents or sales agents (if any) of their intention to withdraw from such Block Trade or Other Coordinated Offering. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Block Trade or Other Coordinated Offering prior to and including its withdrawal under this Section 2.05(b).

(c)Any Registration effected pursuant to this Section 2.05 shall be deemed an Underwritten Shelf Takedown and within the cap on Underwritten Shelf Takedowns provided in the penultimate sentence of Section 2.03(a). Notwithstanding anything to the contrary in this Agreement, Section 2.04 hereof shall not apply to a Block Trade or Other Coordinated Offering initiated by a Demanding Holder pursuant to this Agreement.

(d)The majority in interest of the Demanding Holder initiating such Block Trade shall have the right to select the Underwriters and any sale agents or placement agents (if any) for such Block Trade or Other Coordinated Offering (in each case, which shall consist of one or more reputable nationally recognized investment banks).

Section 2.06Rule 415; Removal. If at any time the Commission takes the position that the offering of some or all of the Registrable Securities in a Form S-3 Shelf filed pursuant to this Article II is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act (provided, however, that the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the Commission Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09) or requires a Holder to be named as an “underwriter,” the Company shall promptly notify each Holder of Registrable Securities thereof (or in the case of the Commission requiring a Holder to be named as an “underwriter,” such Holder) and use commercially reasonable efforts to persuade the Commission that the offering contemplated by such Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415. In the event that the Commission refuses to alter its position, the Company shall (a) remove from such Registration Statement such portion of the Registrable Securities (the “Removed Shares”) and/or (b) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Commission may require to assure the Company’s compliance with the requirements of Rule 415; provided,

 

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however, that the Company shall not agree to name any Holder as an “underwriter” in such Registration Statement without the prior written consent of such Holder and, if the Commission requires such Holder to be named as an “underwriter” in such Registration Statement, notwithstanding any provision in this Agreement to the contrary, the Company shall not be under any obligation to include any Registrable Securities of such Holder in such Registration Statement. In the event of a share removal pursuant to this Section 2.06, the Company shall give the applicable Holders at least five (5) days’ prior written notice along with the calculations as to such Holder’s allotment. Any removal of shares of the Holders pursuant to this Section 2.06 shall first be applied to Holders other than the Holders with securities registered for resale under the applicable Registration Statement and thereafter allocated between the Holders on a Pro Rata basis based on the aggregate amount of Registrable Securities held by such Holders. In the event of a share removal of the Holders pursuant to this Section 2.06, the Company shall promptly register the resale of any Removed Shares pursuant to Section 2.01(b) hereof and in no event shall the filing of such Shelf filed pursuant to the terms of Section 2.01(b) be counted as a Demand Registration hereunder.

Section 2.07Effect of Failure to File and Obtain and Maintain Effectiveness of Registration Statement. If (i) a Registration or Registration Statement, as applicable, is not filed with the Commission on or prior to the filing deadline set forth in this Agreement, (ii) the Registration or Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the effectiveness deadline set forth in this Agreement, or (iii) after its effective date, such Registration Statement ceases for any reason other than in connection with an Allowed Delay to remain continuously effective as to all Registrable Securities thereunder for which it is required to be effective pursuant to this Agreement (any such failure or breach in clauses (i) through (iii) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), or (iii), the date on which such Event occurs, being referred to as an “Event Date”), then in addition to any other rights such Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each such Holder, at each such Holder’s election (each, an “Electing Holder”), an amount in cash, as liquidated damages and not as a penalty (the “Registration Liquidated Damages”), equal to two percent (2.0%) of the Aggregate Assumed Purchase Price (as defined below) paid by such Electing Holder for the Registrable Securities for which no Registration or Registration Statement, as applicable, is filed, effective, or available for use as provided in clauses (i) through (iii), in each case, as applicable, provided that, this Section 2.07 shall not apply with respect to Events relating to Registration Statements contemplated by this Agreement until after the consummation of the Company’s initial Business Combination. Such payments shall be made to each Electing Holder in cash no later than ten (10) business days after the first Event Date and the expiry of each subsequent 30-day period, as applicable. Simple interest shall accrue at the rate of two percent (2.0%) per month on any Registration Liquidated Damages that shall not be paid by the applicable payment date until such amounts are paid in full. The parties agree that (A) notwithstanding anything to the contrary herein, in no event shall the aggregate amount of Registration Liquidated Damages payable to each Electing Holder pursuant to this Section 2.07 exceed, in the aggregate, ten percent (10.0%) of such Electing Holder’s Aggregate Assumed Purchase Price and (B) in no event shall the Company be liable in any thirty (30)-day period for Registration Liquidated Damages under this Agreement in excess of two percent (2.0)% of such

 

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Electing Holder’s Aggregate Assumed Purchase Price. For purposes of this Section 2.07, the “Aggregate Assumed Purchase Price” shall mean the sum of $11.00 multiplied by the aggregate amount of Registrable Securities constituting Units; $10.00 multiplied by the aggregate amount of Registrable Securities constituting shares of Common Stock, and $2.00 multiplied by the aggregate amount of Registrable Securities constituting whole Warrants, for which no such Registration Statement is filed, effective, or available for use as provided in clauses (i) through (iii), in each case, as applicable, with respect to such Registrable Securities. The deadlines set forth in this Agreement for filing a Registration or Registration Statement shall be extended without default and without the payment of Registration Liquidated Damages hereunder in the event that the Company’s bona fide failure to obtain the effectiveness of the Registration or Registration Statement on a timely basis results from the failure of a Holder to timely provide the Company with information reasonably requested by the Company and necessary to complete the Registration or Registration Statement in accordance with the requirements of the Securities Act.

Article III.
Company Procedures

Section 3.01General Procedures. If the Company is required to effect the Registration of Registrable Securities, the Company shall use its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:

(a)prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities;

(b)prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the Holders of at least five percent (5%) of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;

(c)prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such

 

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Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s EDGAR system;

(d)prior to any public offering of Registrable Securities, but in any case no later than the effective date of the applicable Registration Statement, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company or otherwise and do any and all other acts and things that may be necessary or advisable, in each case, to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;

(e)cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;

(f)provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;

(g)promptly furnish to each seller of Registrable Securities covered by such Registration Statement such number of conformed copies of such Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the Prospectus contained in such Registration Statement (including each preliminary Prospectus and any summary Prospectus) and any other Prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such seller may reasonably request;

(h)advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of any request by the Commission that the Company amend or supplement such Registration Statement or Prospectus or of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or Prospectus or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to amend or supplement such Registration Statement or Prospectus or prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued, as applicable;

(i)notify each Holder of Registrable Securities covered by such Registration Statement, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;

 

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(j)at least five (5) business days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or the Exchange Act, as applicable), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);

(k)notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event or the existence of any condition as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, or in the opinion of counsel for the Company it is necessary to supplement or amend such Prospectus to comply with law, and then to correct such Misstatement or include such information as is necessary to comply with law, in each case as set forth in Section 3.05 hereof;

(l)permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such Person’s own expense, in the preparation of any Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that, if requested by the Company, such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;

(m)obtain a “cold comfort” letter (including a bring-down letter dated as of the date the Registrable Securities are delivered for sale pursuant to such Registration)from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders and the managing Underwriter;

(n)on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority-in-interest of the participating Holders and the managing Underwriter;

(o)in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such Underwritten Offering;

(p)otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and to make available to its security holders, as soon as

 

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reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations thereunder, including Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);

(q)with respect to an Underwritten Offering pursuant to Section 2.03, use its reasonable best efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter(s) in any such Underwritten Offering; and

(r)otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.

Notwithstanding the foregoing, the Company shall not be required to provide any documents or information to an Underwriter or other sales agent or placement agent if such Underwriter or other sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other coordinated offering that is registered pursuant to a Registration Statement.

Section 3.02Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.

Section 3.03Stock Distributions. In connection with any Shelf or Underwritten Shelf Takedown, if the Company shall receive a request from a Holder of Registrable Securities to effectuate a pro rata in-kind distribution or other similar transfer for no consideration of such Registrable Securities pursuant to such Registration to its members, partners or stockholders, as the case may be, then the Company shall deliver or cause to be delivered to the transfer agent and registrar for the Registrable Securities an opinion of counsel to the Company reasonably acceptable to such transfer agent and registrar that any legend referring to the Securities Act may be removed upon such distribution or other transfer of such Registrable Securities pursuant to such Registration. The Company’s obligations hereunder are conditioned upon the receipt of a representation letter reasonably acceptable to the Company from such Holder regarding such proposed pro rata in-kind distribution or other similar transfer for no consideration of such Registrable Securities.

Section 3.04Requirements for Participation in Underwritten Offerings.

(a)The Holders of Registrable Securities shall provide such information as may reasonably be requested by the Company, or the managing Underwriter or placement agent or sales agent, if any, in connection with the preparation of any Registration Statement or Prospectus, including amendments and supplements thereto, in order to effect the Registration of any Registrable Securities under the Securities Act pursuant to Article II and in connection with the

 

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Company’s obligation to comply with federal and applicable state securities laws. Notwithstanding anything in this Agreement to the contrary, if any Holder does not provide such information, the Company may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the Registration and such Holder continues thereafter to withhold such information. The exclusion of a Holder’s Registrable Securities as a result of this Section 3.04(a) shall not affect the registration of the other Registrable Securities to be included in such Registration.

(b)No Person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Company and (b) completes and executes all customary questionnaires, powers of attorney, indemnities, lock‑up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements.

(c)Holders participating in an Underwritten Offering may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the Underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such Underwriters shall also be made to and for the benefit of such Holders; provided, however, that the Company shall not be required to make any representations or warranties with respect to written information specifically provided by a Holder in writing for inclusion in the Registration Statement.

Section 3.05Suspension of Sales; Adverse Disclosure.

(a)Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, or in the opinion of counsel for the Company it is necessary to supplement or amend such Prospectus to comply with law, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received copies of a supplemented or amended Prospectus correcting the Misstatement or including the information counsel for the Company believes to be necessary to comply with law (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice such that the Registration Statement or Prospectus, as so amended or supplemented, as applicable, will not include a Misstatement and complies with applicable law), or until he, she or it is advised in writing by the Company that the use of the Prospectus may be resumed.

(b)Subject to Section 3.05(d), if the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (i) require the Company to make an Adverse Disclosure, (ii) require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, or (iii) in the good faith judgment of the majority of the Board such Registration would cause serious and irreparable harm to the Company and the majority of the Board concludes as a result that it is essential to defer such filing, initial effectiveness or continued use at such time (clause (ii) only, an “Allowed Delay”), the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such

 

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Registration Statement for the shortest period of time, determined in good faith by the Chief Executive Officer of the Company or the Board to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 3.05.

(c)Subject to Section 3.05(d), during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred twenty (120) days after the effective date of, a Company-initiated Registration and provided that the Company continues to actively employ, in good faith, all reasonable efforts to maintain the effectiveness of the applicable Shelf, or if, pursuant to Section 2.03 Holders have requested an Underwritten Shelf Takedown and the Company and such Holders are unable to obtain the commitment of underwriters to firmly underwrite such offering, the Company may, upon giving prompt written notice of such action to the Holders, delay any other registered offering pursuant to Section 2.03.

(d)The right to delay or suspend any filing, initial effectiveness or continued use of a Registration Statement pursuant to Section 3.05(b) or a registered offering pursuant to Section 3.05(c) shall be exercised by the Company for not more than (i) sixty (60) consecutive calendar days in any case or (ii) one hundred and twenty (120) total calendar days, in the aggregate, during any twelve (12)-month period.

Section 3.06Market Stand-Off. In connection with any Underwritten Offering of equity securities of the Company (other than a Block Trade or Other Coordinated Offering), each Holder that participates in the Underwritten Offering pursuant to the terms of this Agreement hereby agrees that it shall not Transfer any shares of Common Stock or other equity securities of the Company (other than those included in such offering pursuant to this Agreement), without the prior written consent of the Company, during the 60-day period beginning on the date of pricing of such offering or such shorter period during which the Company agrees not to conduct an underwritten primary offering of Common Stock, except in the event the Underwriters managing the offering otherwise agree by written consent. Each such participating Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in each case on substantially the same terms and conditions as all such participating Holders).

Section 3.07Covenants of the Company. As long as any Holder shall own Registrable Securities, the Company hereby covenants and agrees that:

(a)The Company will not file any Registration Statement or Prospectus included therein or any other filing or document (other than this Agreement) with the Commission that refers to any Holder of Registrable Securities by name or otherwise without the prior written approval of such Holder, which may not be unreasonably withheld, unless required by applicable law or the Commission Guidance;

(b)As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain

 

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extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings, provided that any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System (or any successor thereto) shall be deemed to have been furnished to the Holders pursuant to this Section 3.07(b). The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell shares of Common Stock held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.

(c)Upon request of a Holder, the Company shall (i) authorize the Company’s transfer agent to remove any legend on share certificates of such Holder’s Common Stock or Private Placement Warrants restricting further transfer (or any similar restriction in book entry positions of such Holder) if such restrictions are no longer required by the Securities Act or any applicable state securities laws or any agreement with the Company to which such Holder is a party, including if such shares subject to such a restriction have been sold pursuant to a Registration Statement, (ii) request the Company’s transfer agent to issue in lieu thereof shares of Common Stock or Private Placement Warrants without such restrictions to the Holder upon, as applicable, surrender of any stock certificates evidencing such shares of Common Stock, or warrant certificates evidencing such Private Placement Warrants or to update the applicable book entry position of such Holder so that it no longer is subject to such a restriction, and (iii) use commercially reasonable efforts to cooperate with such Holder to have such Holder’s shares of Common Stock or Private Placement Warrants, as the case may be, transferred into a book entry position at The Depository Trust Company, in each case, subject to delivery of customary documentation, including any documentation required by such restrictive legend or book entry notation.

Section 3.08Transfer Restrictions.

(a)Except as permitted by Section 3.08(b), during the applicable Lock‑Up Periods, (i) none of the Legacy Fast Radius Holders shall Transfer any shares of Common Stock or any securities convertible into, exercisable for, exchangeable for or that represent the right to receive shares of Common Stock beneficially owned or owned of record by such Holder (including securities held as a custodian) and (ii) none of the ENNV Holders (other than GSAM) shall transfer any Founder Shares or Private Placement Warrants, as applicable, beneficially owned or owned of record by such Holder (collectively, the “Restricted Securities”); provided, however, that (i) any shares of Common Stock acquired by a party hereto in the PIPE Investment, (ii) any Merger Shares owned by JCDP-4 LLC immediately following Closing and any Earn Out Shares issued or issuable to JCDP-4 LLC following the Closing and (iii) 800,000 Merger Shares owned by Skydeck Holdings II LLC immediately following Closing and any Earn Out Shares issued or issuable to Skydeck Holdings II LLC following the Closing, in each case, shall not be subject to this Section 3.08. Additionally, for the avoidance of doubt, no Founder Shares or Private Placement Warrants held by GSAM shall be subject to this Section 3.08.

 

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(b)Notwithstanding the provisions set forth in Section 3.08(a), Transfers of (x) shares of Common Stock or any securities convertible into, exercisable for, exchangeable for or that represent the right to receive shares of Common Stock beneficially owned or owned of record by a Legacy Fast Radius Holder or (y) Founder Shares or Private Placement Warrants beneficially owned or owned of record by an ENNV Holder (other than GSAM), are permitted (i) to the Company’s officers or directors, any affiliates or family members of any of the Company’s officers or directors or any affiliate of the Sponsor or to any member(s) of the Sponsor or any of their respective affiliates; (ii) in the case of an individual, transfers by gift to a member of the individual’s immediate family, to a trust, the beneficiary of which is a member of the individual’s immediate family or an affiliate of such person, or to a charitable organization; (iii) in the case of an individual, transfers by virtue of laws of descent and distribution upon death of the individual; (iv) in the case of an individual, transfers pursuant to a qualified domestic relations order; (v) transfers in the event of the Company’s liquidation prior to the completion of the Business Combination; (vi) transfers by virtue of the laws of the State of Delaware or the Sponsor’s limited liability company agreement upon dissolution of the Sponsor; (vii) in the event of the Company’s liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property subsequent to the completion of the Business Combination; (viii) by the Company’s employees or former employees for purposes of funding or satisfying any applicable withholding taxes associated with any vesting and/or settlement of restricted stock unit awards; and (ix) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, performance units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, performance units, options, warrants or rights (including any transfers as forfeitures to satisfy tax withholding obligations); provided, however, that in the case of clauses (i) through (iv), such permitted transferees, to the extent not already party hereto, must enter into a written agreement agreeing to be bound by the restrictions in this Section 3.08; provided, further, that in the case of clause (ix), any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Agreement.

(c)Each Holder hereby represents and warrants that it now has and, except as contemplated by this Section 3.08(c), for the duration of the applicable Lock-Up Period will have good and marketable title to its Restricted Securities, free and clear of all liens, encumbrances, and claims that could impact the ability of such Holder to comply with the foregoing restrictions. Each Holder agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of any Restricted Securities during the applicable Lock-Up Period.

Article IV.
Indemnification and Contribution

Section 4.01Indemnification.

(a)The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors and agents and each Person who controls such Holder (within the meaning of the Securities Act) from and against all losses, claims, damages, liabilities

 

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and expenses (including, without limitation, reasonable attorneys’ fees) or actions or proceedings, whether commenced or threatened, in respect thereof (collectively, “Claims”), resulting from any Misstatement or alleged Misstatement contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto, except insofar as the Claim arises out of or is based on any Misstatement or alleged Misstatement made in such filing in reliance upon and in conformity with information furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.

(b)In connection with any Registration Statement in which a Holder of Registrable Securities is participating, the Company may require that, as a condition to including any Registrable Securities in any Registration Statement or Prospectus, the Company shall have received an undertaking reasonably satisfactory to it from such Holder, to indemnify the Company, its directors and officers and agents and each Person who controls the Company (within the meaning of the Securities Act) from and against Claims resulting from any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information so furnished in writing by such Holder expressly for use therein. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company. If any Underwriter shall require any Holder of Registrable Securities to provide any indemnification other than that provided in this Section 4.01(b), such Holder may elect not to participate in such Underwritten Offering (but shall not have any claim against the Company as a result of such election). For the avoidance of doubt, the obligation to indemnify under this Section 4.01(b) shall be several, not joint and several, among the Holders of Registrable Securities, and the total indemnification liability of a Holder under this Section 4.01(b) shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement.

(c)Any Person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any Claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such Claim, permit such indemnifying party to assume the defense of such Claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without the indemnifying party’s consent; provided that such consent shall not be unreasonably withheld. An indemnifying party who is not entitled to, or elects not to, assume the defense of a Claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such Claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified

 

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parties with respect to such Claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault or culpability on the part of such indemnified party or does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such Claim or litigation.

(d)The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, partners, stockholders or members, employees, agents, investment advisors or controlling Person of such indemnified party and shall survive the Transfer of Registrable Securities. The Company and each Holder of Registrable Securities participating in a Registration also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.

(e)If the indemnification provided under Section 4.01 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, Claims, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Claims (a) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties, on the one hand, and the indemnified party or parties, on the other hand, from the offering of the Registrable Securities or (b) if the allocation provided by clause (a) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (a) above but also to reflect the relative fault of the indemnifying party or parties in connection with the statements or omissions that resulted in such Claims, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder or any director, officer, agent or controlling Person thereof under this Section 4.01(e) shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Section 4.01(a), Section 4.01(b) and Section 4.01(c) above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.01(e) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 4.01(e). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.01(e) from any Person who was not guilty of such fraudulent misrepresentation.

 

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Article V.
Miscellaneous

Section 5.01Notices. All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email (in each case in this clause (iv), solely if receipt is confirmed, but excluding any automated reply, such as an out-of-office notification), addressed as follows:

If to the Company (prior to the Closing Date), to:

ECP Environmental Growth Opportunities Corp.

40 Beechwood Road

Summit, New Jersey 07901

Attention:  Tyler Reeder

Email:    [email protected]

with copies to (which shall not constitute notice):

Latham and Watkins LLP

1271 Avenue of the Americas

New York, NY 10020

Attention:    David Kurzweil, David Owen

Email:    [email protected]; [email protected]

and

Latham and Watkins LLP

811 Main St., Suite 3700

Houston, TX 77002

Attention:    Ryan Maierson

Email:  [email protected]

If to the Company (on or after the Closing Date), to:

Fast Radius, Inc.

113 N May St

Chicago, IL 60607

Attention:    Louis Rassey

Email:    [email protected]

 

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with copies to (which shall not constitute notice):

DLA Piper LLP (US)

444 West Lake Street, Suite 900

Chicago, Illinois 60606

Attention:    Scott Kapp

Email:    [email protected]

or to such other address or addresses as the Company, as applicable, may from time to time designate in writing. If to any Holder, to such address indicated on the records of the Company or Legacy Fast Radius with respect to such Holder or to such other address or addresses as such Holder may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.

Section 5.02Assignment; No Third Party Beneficiaries.

(a)This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.

(b)Prior to the expiration of the Business Combination Lock-up Period or the Private Placement Lock‑up Period, as the case may be, no Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, except in connection with a transfer of Registrable Securities by such Holder to a Permitted Transferee.

(c)Subject to Section 5.02(b), a Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, to any Person to whom it Transfers Registrable Securities, provided that such Registrable Securities remain Registrable Securities following such Transfer and such Person agreed to become bound by the terms and provisions of this Agreement in accordance with Section 5.02(f).

(d)This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.

(e)This Agreement shall not confer any rights or benefits on any Persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.02 hereof.

(f)No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.01 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.02 shall be null and void.

Section 5.03Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced.

 

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Section 5.04Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO AGREEMENTS AMONG NEW YORK RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION AND THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THE AGREEMENT SHALL BE ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY IN THE STATE OF NEW YORK.

EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

Section 5.05Amendments and Modifications. Upon the written consent of (a) the Company (on or after the Closing Date), on the one hand, and (b) the Holders of a majority of the total Registrable Securities, on the other hand, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that in the event any such waiver, amendment or modification would be adverse in any material respect to the material rights or obligations hereunder of a Holder, the written consent of such Holder will also be required; provided further that in the event any such waiver, amendment or modification would be disproportionate and adverse in any material respect to the material rights or obligations hereunder of a Holder, the written consent of such Holder will also be required. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.

Section 5.06Termination of Existing Registration Rights. The registration rights granted under this Agreement shall supersede any registration, qualification or similar rights of the Holders with respect to any shares or securities of the Company or Legacy Fast Radius granted under any other agreement, including, but not limited to, the Original Registration Rights Agreement and that certain Amended and Restated Investors’ Rights Agreement, dated as of May 7, 2020, by and among Legacy Fast Radius and the other parties thereto, any of such preexisting registration, qualification or similar rights and such agreements shall be terminated and of no further force and effect.

Section 5.07Term. This Agreement shall terminate upon the earlier of (a) the tenth anniversary of the date of this Agreement, (b) the date as of which (x) all of the Registrable

 

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Securities have been sold pursuant to a Registration Statement (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter by the Commission)) or (y) the Holders of all Registrable Securities are permitted to sell the Registrable Securities under Rule 144 (or any similar provision) under the Securities Act without limitation on the amount of securities sold or the manner of sale, (c) the valid termination of the Merger Agreement or (d) with respect to a particular Holder, the date as of which all Registrable Securities held by such Holder have been sold (x) pursuant to a Registration Statement (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter by the Commission)) or (y) under Rule 144 (or any similar provision) or another exemption from registration under the Securities Act. The provisions of Section 3.06, Article IV, Section 5.01 and Section 5.04 shall survive any termination.

Section 5.08Holder Information; Aggregation of Registrable Securities. Each Holder agrees, if requested in writing, to represent to the Company the total number of Registrable Securities held by such Holder in order for the Company to make determinations hereunder. All Registrable Securities held or acquired by Persons who are Affiliates of one another shall be aggregated together for the purpose of determining the availability of any rights and applicability of any obligations under this Agreement.

Section 5.09Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.

Section 5.10Specific Performance. The parties hereto agree that irreparable damage could occur in the event that any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specific enforcement of the terms and provisions of this Agreement, in addition to any other remedy to which any party is entitled at law, in equity or under this Agreement. In the event that any action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.

[Signature Page Follows]

 

 

 

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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

 

 

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[Signature Page to Registration Rights Agreement]

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[Signature Page to Registration Rights Agreement]

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Schedule A

Legacy Fast Radius Holders

 

Exhibit 10.4

 

July 18, 2021

 

Fast Radius, Inc.

113 N. May St.

Chicago, IL 60607 

 

ECP Environmental Growth Opportunities Corp.

40 Beechwood Road

Summit, New Jersey 07901

 

Ladies and Gentlemen:

This letter (this “Company Support Agreement”) is being delivered to you in accordance with that Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), by and among ECP Environmental Growth Opportunities Corp., a Delaware corporation (“ENNV”), ENNV Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Fast Radius, Inc., a Delaware corporation (the “Company”), pursuant to which Merger Sub will merge with and into the Company, with the Company surviving such merger as a wholly owned subsidiary of ENNV (the “Merger” and, together with the other transactions contemplated by the Merger Agreement, the “Business Combination”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.

The undersigned stockholders of the Company (each, a “Stockholder” and collectively, the “Stockholders”) are currently, and as of immediately prior to the Closing will be, the record owners of the number of outstanding Equity Interests of the Company detailed on Schedule A hereto (the shares of capital stock of the Company detailed thereon, the “Owned Shares” and, together with (1) any additional shares of capital stock of the Company (or any securities convertible into or exercisable or exchangeable for Company Common Stock or Company Preferred Stock) in which such Stockholder acquires record ownership after the date hereof, including, but not limited to, by purchase or other acquisition, as a result of any subdivision, stock split, stock dividend, reclassification or similar transaction, or upon exercise, exchange or conversion of any securities and (2) any additional shares of capital stock of the Company with respect to which such Stockholder has, or with respect to which such Stockholder acquires after the date hereof, the right to vote or share in the voting of, the “Covered Shares”).

In order to induce the Company and ENNV to enter into the Merger Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Stockholder hereby agrees with the Company and, at all times prior to any valid termination of the Merger Agreement in accordance with its terms, ENNV as follows:

 

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Prior to any valid termination of the Merger Agreement in accordance with its terms, each Stockholder shall take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary under applicable Laws to consummate the Business Combination and the other transactions contemplated by the Merger Agreement on the terms and subject to the conditions set forth therein.

The obligations of the Stockholders specified in this paragraph 1 shall apply whether or not the Merger, any Requisite Stockholder Approval or any action described above is recommended by the Board of Directors of the Company.

 

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[Signature pages follow]

 

 

 

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[Signature Page to Company Support Agreement]

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[Signature Page to Company Support Agreement]

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[Signature Page to Company Support Agreement]

Exhibit 10.5

July 18, 2021

ECP Environmental Growth Opportunities Corp.

40 Beechwood Road

Summit, New Jersey 07901

Fast Radius, Inc.

113 N. May St.

Chicago, IL 60607 

 

Ladies and Gentlemen:

 

This letter (this “Sponsor Support Agreement”) is being delivered to you in accordance with that Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), by and among ECP Environmental Growth Opportunities Corp., a Delaware corporation (“ENNV”), ENNV Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Fast Radius, Inc., a Delaware corporation (the “Company”), pursuant to which Merger Sub will merge with and into the Company, with the Company surviving such merger as a wholly owned subsidiary of ENNV (the “Merger” and, together with the other transactions contemplated by the Merger Agreement, the “Business Combination”). This Sponsor Support Agreement hereby amends and restates in its entirety that certain letter agreement, dated February 8, 2021 (the “Prior Letter Agreement”), by and among ENNV, ENNV Holdings, LLC, a Delaware limited liability company (the “Sponsor”), and the undersigned individuals, each of whom is a member of ENNV’s board of directors (the “Board”) and/or management team party thereto (together with the Sponsor, each, an “Insider” and, collectively, the “Insiders”). Certain capitalized terms used herein are defined in paragraph 4 hereof. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.

The Insiders are currently, and as of the Closing will be, the record owners of the number of outstanding Founder Shares and Private Placement Warrants detailed on Schedule A hereto.

In order to induce the Company and ENNV to enter into the Merger Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Insider hereby agrees with ENNV and, at all times prior to any valid termination of the Merger Agreement in accordance with its terms, the Company as follows:

 

 

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Prior to any valid termination of the Merger Agreement in accordance with its terms, each Insider shall take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary under applicable Laws to consummate the Business Combination and the other transactions contemplated by the Merger Agreement on the terms and subject to the conditions set forth therein.

The obligations of the Insiders specified in this paragraph 1 shall apply whether or not the Merger, any Transaction Proposal or any action described above is recommended by the Board.

 

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[Signature pages follow]

 

 

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Sincerely,

ECP Environmental Growth Opportunities Corp.

 

 

By:/s/ Tyler Reeder

Name: Tyler Reeder

Title:President and Chief Executive Officer

 

 

[Signature Page to Sponsor Support Agreement]

 

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INSIDERS:

 

 

ENNV Holdings, LLC

 

 

By:/s/ Tyler Reeder

Name:Tyler Reeder

Title:President and Chief Executive Officer

 

 

/s/ Douglas Kimmelman

Douglas Kimmelman

 

 

/s/ Tracy B McKibben

Tracy B McKibben

 

 

/s/ Kathryn E. Coffey

Kathryn E. Coffey

 

 

/s/ Richard Burke

Richard Burke

 

 

/s/ Tyler Reeder

Tyler Reeder

 

 

/s/ Drew Brown

Drew Brown

 

 

/s/ Chris Leininger

Chris Leininger

 

 

/s/ Tyler Kopp

Tyler Kopp

 

 

/s/ David Lockwood

David Lockwood

 

[Signature Page to Sponsor Support Agreement]

 

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Acknowledged and Agreed:

 

Fast Radius, Inc.

 

 

By: /s/ Louis Rassey

Name: Louis Rassey

Title:CEO

 

 

 

 

 

[Signature Page to Sponsor Support Agreement]

 

Exhibit 99.1

Fast Radius, a First-of-its-Kind Cloud Manufacturing and Digital Supply Chain Company, to List on NASDAQ through a Business Combination with ECP Environmental Growth Opportunities Corp. (NASDAQ: ENNV)

 

 

Summit, New Jersey and Chicago, IL – July  19, 2021 – Fast Radius, Inc. (“Fast Radius”), a cloud manufacturing and digital supply chain company, and ECP Environmental Growth Opportunities Corp. (NASDAQ: ENNV) have entered into a definitive agreement that will result in Fast Radius becoming a publicly-listed company.

 

Purpose-Built Software and Technology Firm Fostering Sustainable Infrastructure and Innovation

Fast Radius is a dynamic software and industrial technology firm that has pioneered and continues to scale the first-of-its-kind cloud manufacturing and digital supply chain infrastructure. The Fast Radius solution combines proprietary software with a network of company-owned distributed micro-factories and third-party suppliers.  This allows engineers to design, produce, and fulfill custom parts across a range of manufacturing technologies, including additive manufacturing, CNC machining, and injection molding.

 

The Fast Radius Cloud Manufacturing Platform™ has served over 2,000 customers, including Fortune 500 companies in the automotive, aerospace, medical, industrial, and consumer industries. The platform is purpose-built to provide industrial-certified parts at production volumes (e.g., thousands of units, not just prototypes) and has made over 11 million custom parts to-date.

 

The Cloud Manufacturing Platform™ is analogous to cloud computing and ushers in a new era of innovation in the physical world, just as cloud computing has done in the digital world. The platform consists of:

 

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This platform represents a new, more sustainable infrastructure to design, make, and move physical goods in the digital age. Fast Radius is scaling its vision to unleash the “fourth modality of logistics.” Instead of storing parts physically, companies will have the ability to store parts digitally in the Fast Radius Virtual Warehouse™. Instead of moving parts by land, air, and sea, companies can move parts at the speed of light and produce them locally in a certified micro-factory where needed. The Cloud Manufacturing Platform™ is creating a more sustainable, more accessible, and more flexible global supply chain paradigm to meet the needs of this century.

 

UPS has partnered with Fast Radius to support the expansion of its digital manufacturing and supply chain infrastructure.  Fast Radius has established one of its micro-factories on-site at UPS’s Worldport facility in Louisville, KY.

 

 

Compelling Investment Highlights and Growth Opportunities

 

Fast Radius plans to build the first $100+ billion cloud manufacturing and digital supply chain company, presenting a compelling investment opportunity in Industry 4.0 and next generation, sustainable infrastructure. Highlights include:

 

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Lou Rassey, Co-Founder and CEO of Fast Radius, commented: “We are building a first-of-its-kind Cloud Manufacturing Platform that is providing a new infrastructure to design, make and move physical things in the digital age. As the Platform expands, we believe cloud manufacturing will have as great an impact on driving innovation in the physical world as cloud computing has had in the digital world. The benefits from the software and hardware powering cloud manufacturing are tangible and significant – the cloud brings improved speed, flexibility, cost, and accessibility to industry 4, all while providing a more sustainable model for global supply chains.”

 

Doug Kimmelman, Chairman of ENNV, commented: “The Fast Radius Cloud Manufacturing Platform™ provides a fundamentally more sustainable way to produce and fulfill parts around the world. We look forward to partnering with Lou and his team to accelerate growth as they execute on their proven business model and capitalize on the significant opportunities in the growing custom parts manufacturing market. As a public company, we believe that Fast Radius will be even better positioned to maintain its leadership in the software and industrial technology industry.”

 

Rassey added: “We are excited to partner with ENNV, as their team’s long track record of success, history of being on the forefront of new sustainable infrastructure transitions, and their institutional reach will accelerate the next chapter of our growth. Our board and management team remain committed to executing on our proven business model and driving value for all stakeholders.”

 

Transaction Overview

 

The combined company will have an estimated post-transaction enterprise value of $995 million with an estimated equity value of $1.4 billion from the contribution of $445 million in gross cash proceeds from the transaction. Proceeds will consist of up to $345 million of cash held in ENNV’s trust account (assuming no redemptions) and an additional $100 million fully committed private investment (the “PIPE”), including a $25 million forward purchase commitment from certain accounts managed by Goldman Sachs Asset Management, L.P. Other investors in the PIPE include UPS, Palantir, ECP and other institutional investors.

 

The net proceeds raised from the transaction will be used to support Fast Radius’ continued growth across customer acquisition, software development, and micro-factory expansion. Fast Radius’ growth strategy is projected to generate revenue and EBITDA of $635 million and $135 million, respectively, in 2025.

 

Current Fast Radius management, employees and existing shareholders will roll 100% of their existing equity holdings into equity of the combined company. The business combination has been unanimously

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approved by the boards of directors of both Fast Radius and ENNV. The business combination is expected to close in Q4 2021, subject to regulatory and stockholder approvals, and other customary closing conditions.

 

Upon closing of the transaction, ENNV will be renamed “Fast Radius, Inc.” and is expected to remain listed on the NASDAQ.

 

For a summary of the material terms of the proposed transaction, as well as a supplemental investor presentation, please see the Current Report on Form 8-K filed today with the U.S. Securities and Exchange Commission (“SEC”). Additional information about the proposed transaction will be described in ENNV’s registration statement relating to the merger, which it will file with the SEC.

 

Advisors

Credit Suisse Securities (USA) LLC and Citigroup Global Markets Inc. are serving as co-financial and co-capital market advisors to Fast Radius, Inc.  DLA Piper LLP (US) is serving as its legal counsel.

 

Barclays Capital Inc. and Morgan Stanley & Co. LLC are serving as financial and capital markets advisors to ENNV and Latham & Watkins LLP is serving as its legal counsel.

 

Credit Suisse Securities (USA) LLC and Barclays Capital Inc. are serving as co-placement agents on the PIPE.

 

Conference Call & Webcast Information

ENNV and Fast Radius management will host a conference call and webcast to discuss the proposed transaction today, July 19, 2021, at 10:00 a.m. Eastern time.

 

The webcast will be broadcast live and will be available for replay here and can also be accessed on Fast Radius’ IR website at ir.fastradius.com and ENNV’s website at ecpennv.com.

 

For those who wish to participate by telephone, please dial (800) 374-0874 (U.S.) or (248) 847-2515 (International) and reference conference ID: 7386924.

 

Please call the conference telephone number 5-10 minutes prior to the start time. An operator will register your name and organization. If you have any difficulty connecting with the conference call, please contact Gateway Investor Relations at (949) 574-3860.

 

A telephonic replay of the conference call will be available after 1:00 p.m. Eastern time today through Monday, July 26, 2021 by dialing (855) 859-2056 (U.S.) or (404) 537-3406 (International) and referencing conference ID: 7386924.  

 

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About Fast Radius, Inc.

Fast Radius, Inc. is a leading cloud manufacturing and digital supply chain company.  The Cloud Manufacturing Platform™ from Fast Radius is a first-of-its-kind solution that integrates design, production, and fulfillment operations through a common digital infrastructure to make manufacturing easier, more accessible, and more sustainable. Founded in 2017, Fast Radius, Inc. is headquartered in Chicago with offices in Atlanta, Louisville, and Singapore and micro-factories in Chicago and at the UPS Worldport facility in Louisville, KY.

 

About ECP Environmental Growth Opportunities Corp.

ECP Environmental Growth Opportunities Corp. (NASDAQ: ENNV) is a special purpose acquisition company formed by Energy Capital Partners Management, LP for the purpose of entering into a merger, stock purchase, or similar business combination with one or more businesses. The strategy of

ECP Environmental Growth Opportunities Corp. is to identify and acquire businesses located in

North America that concentrate on combating climate change by decreasing the carbon intensity

of energy production, increasing the efficiency of industrial and consumer-related activities,

expanding electricity storage and distribution, and improving the overall sustainability of the

economy through efforts to lower pollution and increase beneficial reuse. For more information, visit ecpennv.com.

 

Cautionary Statement Regarding Forward-Looking Statements

This press release contains certain forward-looking statements within the meaning of the federal securities laws with respect to the proposed business combination (the “Transaction”) between Fast Radius and ENNV. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “scales,” “representative of,” “valuation,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. 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. Many factors could cause actual future events to differ materially from the forward-looking statements in this press release, including but not limited to: (i) the risk that the Transaction may not be completed in a timely manner or at all, which may adversely affect the price of ENNV’s securities, (ii) the risk that the Transaction may not be completed by ENNV’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by ENNV, (iii) the failure to satisfy the conditions to the consummation of the Transaction, including the requisite approvals of ENNV’s and Fast Radius’ stockholders, the satisfaction of the minimum trust account amount following any redemptions by ENNV’s public stockholders and the receipt of certain governmental and regulatory approvals, (iv) the lack of a third party valuation in determining whether or not to pursue the Transaction, (v) the risk that ENNV’s proposed private offering of public equity is not completed, (vi) the occurrence of any event, change or other circumstance that could give rise to the termination of the agreement and plan of merger (the “Merger Agreement”) relating to the Transaction, (vii) the effect of the announcement or pendency of the Transaction on Fast Radius’ business or employee relationships, operating results and business generally, (viii) the risk that the Transaction disrupts current plans and operations of Fast Radius, (ix) the risk of difficulties in retaining employees of Fast Radius as a result of the Transaction, (x) the outcome of any legal proceedings that may be instituted against Fast Radius or against ENNV related to the Merger Agreement or the Transaction, (xi) the ability to maintain the listing of ENNV’s securities on a national securities exchange, (xii) changes in the competitive industries in which Fast Radius operates, variations

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in operating performance across competitors, changes in laws and regulations affecting Fast Radius’ business and changes in the combined capital structure, (xiii) the ability to implement business plans, forecasts, and other expectations after the completion of the Transaction, and the ability to identify and realize additional opportunities, (xiv) risks related to the uncertainty of Fast Radius’ projected financial information, (xv) risks related to Fast Radius’ potential inability to become profitable and generate cash, (xvi) current and future conditions in the global economy, including as a result of the impact of the COVID-19 pandemic, (xvii) the risk that demand for Fast Radius’ cloud manufacturing technology does not grow as expected, (xviii) the ability of Fast Radius to retain existing customers and attract new customers, (xix) the potential inability of Fast Radius to manage growth effectively, (xx) the potential inability of Fast Radius to increase its cloud manufacturing capacity or to achieve efficiencies regarding its cloud manufacturing process or other costs, (xxi) the enforceability of Fast Radius’ intellectual property rights, including its copyrights, patents, trademarks and trade secrets, and the potential infringement on the intellectual property rights of others, (xxii) Fast Radius’ dependence on senior management and other key employees, (xxiii) the risk of downturns and a changing regulatory landscape in the highly competitive industry in which Fast Radius operates, (xxiv) the risk that Fast Radius may require additional funding for its growth plans and may not be able to obtain any additional financing on terms that are acceptable to Fast Radius or at all and (xxv) costs related to the Transaction and the failure to realize anticipated benefits of the Transaction or to realize estimated pro forma results and underlying assumptions, including with respect to estimated stockholder redemptions. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties which will be more fully described in the “Risk Factors” section of ENNV’s Quarterly Reports on Form 10-Q, the registration statement on Form S-4 and the proxy statement/prospectus discussed below and other documents filed by ENNV from time to time with the Securities and Exchange Commission (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 Fast Radius and ENNV assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither Fast Radius nor ENNV gives any assurance that either Fast Radius or ENNV, or the combined company, will achieve its expectations.

 

Additional Information and Where To Find It

This press release relates to the proposed Transaction between ENNV and Fast Radius. ENNV intends to file a registration statement on Form S-4 relating to the Transaction with the SEC (the “Registration Statement”), which will include a proxy statement/prospectus that will be sent to all ENNV stockholders. ENNV will also file other documents regarding the Transaction with the SEC. Before making any voting decision, investors and security holders of ENNV and Fast Radius are urged to read the Registration Statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the Transaction as they become available because they will contain important information about the Transaction. Investors and security holders will be able to obtain free copies of the Registration Statement, the proxy statement/prospectus, and all other relevant documents filed or that will be filed with the SEC by ENNV through the website maintained by the SEC at www.sec.gov. The documents filed by ENNV with the SEC also may be obtained free of charge upon written request to ENNV at 40 Beechwood Road, Summit, New Jersey 07901.

 

Participants in the Solicitation

ENNV, Fast Radius and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from ENNV’s stockholders in connection with the Transaction.

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A list of the names of such directors and executive officers and information regarding their interests in the Transaction will be included in the proxy statement/prospectus when available. You can find more information about ENNV’s directors and executive officers in the final prospectus relating to ENNV’s initial public offering, which ENNV filed with the SEC on February 10, 2021. You may obtain free copies of these documents as described in the preceding paragraph.

 

No Offer or Solicitation

This press release shall not constitute an offer to sell or exchange or the solicitation of an offer to buy or exchange any securities, nor shall there be any sale or exchange of securities in any jurisdiction in which such offer, solicitation, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of the U.S. Securities Act of 1933, as amended.

 

Contacts

Fast Radius Investor Relations

Cody Slach, Alex Thompson

(949) 574-3860

[email protected]  

 

Fast Radius Public Relations

Jordan Schmidt

(949) 574-3860

[email protected]

 

ECP

Jonathan Keehner / Julie Hamilton / Kara Brickman

Joele Frank, Wilkinson Brimmer Katcher

212-355-4449

 

Exhibit 99.2

 

Speakers:

Doug Kimmelman – Chairman of ECP Environmental Growth Opportunities Corp.

Tyler Reeder – President & CEO of ECP Environmental Growth Opportunities Corp.

Lou Rassey - Co-Founder & Chief Executive Officer of Fast Radius, Inc.

Pat McCusker - Co-Founder, Chief Operating Officer & Interim Chief Financial Officer of Fast Radius, Inc.

Alex Thompson, Gateway Investor Relations

 

Operator

Hello everyone, and thank you for participating in today’s conference call to discuss the business combination between ECP Environmental Growth Opportunities Corp. and Fast Radius. Joining us today from ECP Environmental Growth Opportunities Corp. are Doug Kimmelman, Chairman and Tyler Reeder, CEO. From Fast Radius, we have Lou Rassey, Co-Founder and CEO and Pat McCusker, Co-Founder, COO and interim CFO. We are also joined by Alex Thompson, Director with Gateway Group. For today’s presentation, both ECP Environmental Growth Opportunities Corp. and Fast Radius have made available a slide presentation, which can be found on their respective websites. The presentation was also filed by ECP Environmental Growth Opportunities Corp. with the US Securities and Exchange Commission and can be found on its website at www.sec.gov. Today’s call has been prerecorded and will not include a Q&A session. Before we go further, I will turn the call over to Mr. Thompson so he can read the safe harbor statement within the meaning of the Private Securities Litigation Reform Act of 1995 that provides important cautions regarding forward-looking statements.

 

Alex Thompson, Gateway Investor Relations

We would first like to remind everyone that this call will contain certain forward-looking statements including, but not limited to, statements regarding ECP Environmental Growth Opportunities Corp.’s and Fast Radius’ expectations or predictions of future financial and business performance and conditions, competitive and industry outlook, and the timing and completion of the business combination.  

Forward-looking statements are inherently subject to risks, uncertainties, and assumptions, and they are not guarantees of performance. We encourage you to read the press release issued today, the

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accompanying presentation, and ECP Environmental Growth Opportunities Corp.’s filings with the SEC for a discussion of the risks that can affect the business combination, ECP Environmental Growth Opportunities Corp.’s and Fast Radius’ respective businesses, and the outlook of the combined company after completion of the proposed business combination.

ECP Environmental Growth Opportunities Corp. and Fast Radius are under no obligation, and expressly disclaim any obligation, to update, alter or otherwise revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.

This conference call is for informational purposes only and will not constitute an offer to buy any securities or a solicitation of any vote in any jurisdiction pursuant to the proposed business combination or otherwise, nor will there be any sale of securities in any jurisdiction in which the offer, solicitation, or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction.

I’d like to remind everyone that this call will be available for telephone replay, starting later today. A webcast will also be available via the link provided in today’s press release, as well as on Fast Radius’ and ECP Environmental Growth Opportunities Corp.’s websites. Now I would like to turn the call over to the Chairman of ECP Environmental Growth Opportunities Corp., Doug Kimmelman. Doug?

 

Doug Kimmelman – Chairman of ECP Environmental Growth Opportunities Corp.

Thank you, Alex, and good morning everyone. My name is Doug Kimmelman, and I am the Chairman of ECP Environmental Growth Opportunities Corp., or ENNV for short. I’m pleased to be with you all to discuss our business combination with Fast Radius, which was announced earlier today. Fast Radius is the first-of-its-kind cloud manufacturing and digital supply chain company that exists to advance the manufacturing industry with an integrated digital and physical platform that simplifies the way parts are designed, made, and moved around the world. The combined company will have an estimated post-transaction equity value of $1.4 billion with $445 million in cash proceeds to the company. Before getting into the details and strategic rationale of this transaction, I’d like to provide an overview of who we are at ECP, and why partnering with Fast Radius was the obvious choice for us.

ENNV is a SPAC formed by ECP which was founded in 2005 and is an investor across energy transition, electrification and decarbonization infrastructure assets, including power generation, renewables and storage solutions, environmental infrastructure and efficiency & reliability assets. At the firm, I and

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others on the ENNV team have managed about $22 billion of capital over the past 16 years across four private equity funds, two credit vehicles, a renewable fund and coinvesting vehicles.  We are primarily a control investor having executed nearly 60 transactions in these sectors.

Our team has deep experience in the public markets having taken two companies private – Calpine and Energy Solutions – and we have taken five of our private portfolio companies public.  Additionally, two of our Directors have been public company CEOs.  We are active in the capital markets as we raise around $2 billion per year of debt capital to support our portfolio companies in addition to our equity activities.

Our decision to form our first SPAC was done after much consideration and was really based on three different ideas: one, we continue to see incredible opportunities in the areas we have been investing in for the past 20 years - Electrification and Sustainability. Two, we know that a lot of the companies we look at don’t have the type of capital they need most - growth equity. And third, we knew that with our firm’s track record over the past two decades, especially in investments on sustainability, we could utilize our strong relationships, reputation and rigorous diligence practices to invest behind a target company that is ready to tap the public markets and well positioned for rapid growth.

From this, we then commenced a rigorous diligence process, evaluating many high-quality businesses. Throughout our evaluation process, we remained steadfast in our commitment to finding a business on par with our PE franchise, one that we have extremely high conviction for and one which possesses a leadership team with the talent and discipline to succeed. After a long diligence process, we were fully confident in our decision to partner with Fast Radius. We believe that the company provides a look into the future with manufacturing in the cloud, and I certainly believe that it scores well on sustainability and energy efficiency measures. It’s led by an entrepreneurial, disciplined, and experienced management team that we admire, and in which we have full confidence. Needless to say, we’re excited to work together to drive long-term growth and value.

With that I'll now turn it over to Tyler, the current CEO of ENNV, to tell us more about the opportunity. Tyler?

 

Tyler Reeder – President & CEO of ECP Environmental Growth Opportunities Corp.

Thanks, Doug. I’m excited to be with you all today, and I will begin by providing more context around our decision to partner with Fast Radius.

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Our team at ECP has been at the forefront of investing in electrification and sustainability including many disruptive businesses across the energy transition in North America.  As Doug said, ENNV evaluated many different companies, and after extensive due diligence, Fast Radius was the obvious standout. As such, we are thrilled that in conjunction with ENNV partnering with Fast Radius, ECP is also investing in the PIPE transaction.

Fast Radius provides us an incredible opportunity in the areas we have been investing in for over 15 years - Electrification and Sustainability. Fast Radius’ one-stop shop design through their software-enabled Cloud Manufacturing Platform^TM not only positions them in a large, $350 billion plus total addressable market, but it also has tremendous sustainability benefits. Specifically, it will reduce excess material waste that needs to be disposed of through optimized part design and modern manufacturing techniques. It will reduce energy consumption through production efficiency from local on demand micro-factories, as well as bring manufacturing back to the US, which has a less carbon-intensive profile than Asia. Finally, it will reduce transportation emissions through its local on-demand micro-factory model. Overall, we think that Fast Radius represents the future of sustainable manufacturing and we believe that Fast Radius is a perfect thematic fit with our investment thesis.

Importantly, this is also an established and proven business. We set out to find a business with a commercially-proven model that needed capital to scale up its platform for significant growth, and Fast Radius is exactly that. Fast Radius has been very successful with high-quality customers in a rapidly-growing market.  With this strong foundation, Fast Radius already has great traction with many customers with whom there is a tremendous opportunity to grow organically, and there is a strong pipeline for future customers. At its essence, this is a company that solves problems for customers, and ultimately, our planet. As you'll hear from Lou shortly, they have many examples of successfully solving real world, time-sensitive problems for their customers.  And, the strategic, committed capital including our forward purchase commitment from Goldman Sachs Asset Management, and additional PIPE capital from UPS, Palantir, and other institutional investors is just further validation of what Fast Radius is building and how excited their customers and strategic partners are about where the company is headed.  With the significant capital being raised from this transaction, Fast Radius will be able to rapidly scale up its already commercially-proven platform and fully fund a business plan to address the very large $350 billion plus addressable market across a wide variety of applications.

I want to come back to Fast Radius’ fantastic leadership team before passing it over to Lou. I, Doug, and our entire team at ECP couldn’t be more impressed with the vision, passion and leadership of the Fast

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Radius team. Over the past several months, we have completed deep, private equity-style diligence on this opportunity, and they have answered all of our hard questions and we fully believe this team is ready for the challenges ahead. They’ve assembled a highly-qualified and capable team of talent across the business, and we’re excited about the company’s bright future. With that, I’ll turn it over to Lou Rassey, co-founder and CEO of Fast Radius. Lou?

 

Lou Rassey - Co-Founder & Chief Executive Officer of Fast Radius

Thanks Tyler, and hello everyone. I'm Lou Rassey, one of the four co-founders and the CEO of Fast Radius. Doug and Tyler did a great job of providing an overview of our combination and partnership with ENNV. We’re incredibly excited to be partnering together and excited about what lies ahead. To begin, I’ll take a few minutes to discuss who we are at Fast Radius, what we do and why we do it.

At Fast Radius, our purpose is to make new things possible to advance the state of the world. We believe in the importance of manufacturing as an industry, not just for the things that it makes - cars, cell phones, satellites - but the things that it makes possible. Manufacturing can make the world more connected, more healthy, more sustainable. As manufacturers, we feed and we power the world with the things that we make. This is important work and now in a digital age, we have new tools to design, make and move products in ways that we could not have imagined even a decade ago.

By way of background, manufacturing is in my DNA. I’m a third-generation manufacturer. I grew up in Detroit in a family of manufacturing professionals. My grandfather started a machine shop that my dad is still running today making precision parts for the auto industry. When I was a kid, I worked there and I would do my homework at a drafting table every day after school, in my dad’s office. This work inspired me. Seeing the beauty and the importance of being able to imagine something, design it, and bring it to the world to help people. My passion for manufacturing, engineering and design has only grown over the years.

I’m a mechanical engineer by trade. I worked at Chrysler, and then a joint venture with BMW launching a factory in Brazil for a couple of years. Then I went on to graduate school at MIT where I studied engineering and business and was a Leaders For Manufacturing fellow. After MIT, I was a partner at McKinsey and was there for almost 12 years. I helped lead the global manufacturing practice and what is now the digital manufacturing and Industry 4.0 service offering at the firm. As a part of that work, I led a global effort looking at the future of manufacturing, looking at where it is going and what it means for

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how companies and countries will compete in this century. It’s through my work at McKinsey that I met a couple of my co-founders and we formed the thesis for what is now Fast Radius.

Our other three co-founders include Pat McCusker, who is our Chief Operating Officer and interim CFO. He is on the call and will be discussing our financials a little bit later. Then we have Chief Scientist Bill King, who is recognized around the world as a thought leader in digital manufacturing and design. He was also the founding CTO of the National Lab in Chicago for digital design and manufacturing. Then, we have John Nanry, who is our Chief Manufacturing Officer, who helped to build the digital manufacturing practice while at McKinsey.

We all have a shared belief in the importance of manufacturing as an industry, the importance of improving how you design, make and move things for the world is what drives us at Fast Radius.

That's our purpose. To make new things possible to advance the state of the world.

With that as the heart of our company, I'll take the next few minutes to provide an executive summary of what we do and the customers we serve.

We built this company to bring manufacturing and supply chains into the digital age; we’re designing, making and moving things for the physical world. We’re a software company but also make industrial grade parts. We use our software platform to cut across the manufacturing ecosystem from early-stage discovery through design, and then to making and fulfilling products. Then we make parts in our own micro-factories, as well as in the factories of our global network of trusted suppliers. I'll give you some examples shortly, but if I could sum it up in a few phrases I’d say that we believe that we are building a platform of software and factories that will empower people to design and make new things in new ways.

We see a future in which Fast Radius and cloud manufacturing will be as profound in the physical world as cloud computing has been in the digital world.

What we're setting out to do is build the first $100 billion dollar cloud manufacturing and digital supply chain company. Really the first of its kind in the industry. We have a $350 billion addressable market today and the market is being reset by Industry 4.0. At present, we have a great track record with over 2,000 customers and 11 million parts produced, but we're focused on problem solving and we're just getting started.

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The biggest problem that we've identified is that manufacturing infrastructure is outdated. We think about manufacturing today - it's rigid, wasteful and leads to very slow and inefficient product development processes. Think of the recent freighter getting stuck in the Suez Canal this past spring. It is terrible and painful to see that's how supply chains work today. We also have these centralized mega factories that make parts in far corners of the world. And those factories will only talk to you if you need 10 million parts. Then those parts are shipped halfway around the world and when they finally arrive at their end destination, they're put on shelves and sit there for long periods of time, leading to trillions of dollars of wasted inventory. This is the infrastructure that is broken in the industry today, it’s a universal global problem - we’re fixing it. The solution we have built is our Cloud Manufacturing Platform.

The term cloud manufacturing is analogous to cloud computing. Both employ internet-connected facilities where users access shared physical resources, use software to orchestrate those resources and build applications without having to invest in complex costly infrastructure themselves. While cloud computing uses data centers, cloud manufacturing leverages factories. At Fast Radius we offer design, manufacturing and fulfillment services on the internet.

Our platform is similar to cloud compute but for the physical world, our infrastructure includes the software operating system, physical factories and an application and services layer.

We have a number of applications today powered by the cloud platform and many more to come. There’s an elastic benefit with the cloud platform, an on demand experience is what we've come to expect in so many aspects of our lives, whether it's shopping, financial services, or media. But that experience hasn't come into manufacturing at scale yet. At least not at the kind of scale that's necessary.

That's what we're building. We want to make it as easy for engineers to design and manufacture parts as it is for you to order delivery as a consumer in your home.

Here’s a recent example - a medical device company was looking to scale up a device to support the pandemic response. Their existing supplier in Asia told them they could not make the parts, and if they could, they couldn't ship them to the US. Fortunately, this company had previously worked with Fast Radius. Our cloud platform evaluated the device’s part and we were able to manufacture them using one of the additive manufacturing technologies in one of our micro-factories. We were able to manufacture 2,000 parts in an industrial-grade medical-certified level in a matter of weeks rather than months, or worse. Our cloud manufacturing platform allows us to solve problems for our customers and help them drive impact in the world for their customers.

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That's what we're driving at Fast Radius.

Further, what's exciting about our Cloud Manufacturing Platform is it has relevance across every major vertical and market. We’ve served over 2,000 customers across industrial, tech, consumer, aerospace, automotive, medical, you name it. We have customers in those verticals that are embracing the benefits of the cloud. And we’re not just serving the Fortune 500, but we're also serving early-stage startups that are looking for flexible, modern ways to bring products and new supply chains to the world - a diverse set of broad customers, size of the market we're entering is incredibly compelling and filled with opportunity.

Before I provide a few more examples how we're working with customers, I'd like to dive deeper into how the Cloud Manufacturing Platform works. The tech stack has four components:

The first is the infrastructure, our factories, and our network of suppliers that make products.

The second layer is our digital thread and learning engine - The digital thread is the DNA of how every part is made. We can gather data at each step in the customer journey, every step in the factory.Our software captures that data so we can analyze it all the time. It gets smarter the more parts that we make. This also helps ensure that each part we make can be made by any one of our micro-factories, consistently, repeatedly over time at an industrial-grade level.

On top of this learning engine and digital thread we have our operating system. This is the software that orchestrates the end-to-end customer experience as well as our internal workflow and operations.

Then on top of that is the fourth layer, our application and services layer. The application and services we're providing cover the end-to-end experience of our customers’ journey from discovering new technologies, to figuring out the right way to design something, to make it, and ultimately fulfill it. Across that journey there are many people that our customers that need to be involved. Design engineers, quality professionals, supply chain professionals.  We want the information to flow across all of those people, when they need it, through the journey.

Our platform creates a digital space that information can be shared and where people can collaborate. From the team that first dreams up the part, discovers new technologies that might help them, to the production team, to the purchasing representative. Everyone can be engaged in the process in a modern, digital-driven way. The customer representative in each of those steps shifts and evolves, but they still need to be connected and engaged. That's what a digital platform like ours can make possible.

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Today we have three services running on the platform, and a roadmap of many more that are at various stages of development and that are a part of the patent strategy that we are pursuing. Our three services or applications on the platform today are:

Overall, each of these apps and services cuts across the end-to-end lifecycle for our customers.

Now, I’ll go through each of the three of them, providing a quick case study for each.

For the first case study I’d like to discuss the On Demand app. Electric motorcycle manufacturer, Curtiss, became an On Demand customer when they needed a CNC machined part quickly. They were in early-stage development. We could help Curtiss scale and produce one part in our certified factory. We proved our value and now we are making over 225 different products for their electric motorcycles across eight different manufacturing technologies.

The On Demand app makes manufacturing easy and accessible for Curtiss as they upload the part, select the material and technology, and then order the number of parts they need. It’s a simple check out process and they can scale not just from prototyping but scale into production volumes.

Our second case study is for our Additive Launch app. This app is for a customer that wants to embrace additive manufacturing and launch a new product to market at scale. The example here is with Aptiv, a tier one automotive supplier. They were working with Ford to bring a low volume variant of a truck to market. They needed to test some different options for the complex electrical connector they were creating. It was going to be costly for them to tool up with injection molding, so Aptiv decided to work with us. We validated that we could reliably and repeatedly produce the connector, and now it's stored in the cloud and they can order it when they want it. This is a great example of us commercially scaling a product. When they needed thousands of these parts,we were able to validate the repeatability of our infrastructure, and also the reliability since each part must meet automotive quality standards.

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What's really interesting here is how companies like Aptiv have scaled with us. A flywheel that has grown with so many of our customers. The example we have here is we started with one of our customers with one part, one OEM platform and it scaled over the following 12 months to 16 different engineers, 26 different parts, with 3X revenue growth that we have seen. This is the flywheel that we've experienced with so many of our customers that realize what we can provide through the Cloud Manufacturing Platform -- easier, better ways of designing making, and scaling parts.

Overall, we have many customers benefitting from our streamlined cloud platform and our software is getting smarter with every part that we make.

To share with you a third case study, I would like to discuss our Virtual Warehouse app. Virtual Warehouse is the idea of storing parts digitally instead of physically.

Our case study here relates to Airbus. Airbus came to us a couple of years ago and said, Look, we're tired of storing tools or waiting for months when we need to get a new tool made or repair an aircraft. Let's create a virtual warehouse together with certified parts that are used to repair planes. It used to take them many weeks or months, and now we can get them the parts they need in just a matter of days.

In order to create these tools for Airbus, we used additive manufacturing and machining and other methods. They have a Build Package with us, which simply means that we store their certified parts virtually. We have gone through the process to certify each part we make for them. We are not just storing the CAD file, but we are storing all of the information about how to make the part and the data from when the parts are actually made. This is all part of the Build Package. Once a customer has a Build Package then we can store that digitally in the cloud. When they need it, they can call on it and we get to work. This is a huge growth opportunity for us and for the industry. Everything that we make and certify, including the parts that we make for customers on the On Demand app, goes in the Virtual Warehouse. Basically, we are growing our library of products.

So, where will cloud manufacturing take us? As we mentioned, the inefficiency in global supply chains today is significant. The infrastructure we're creating here at Fast Radius is one that's flexible, sustainable and accessible. Instead of centralized mega factories, we have local micro-factories that can produce just in time. Also, as we continue to make our parts, our software is getting smarter. We are increasingly able to make recommendations and provide insights into the designing, ordering, and fulfilling experience. These insights we gain from our software is a large part of how we differentiate ourselves.

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I’ve mentioned our micro-factories a few times. When we think of micro-factories we think of them like a “factory in a box.” These factories are varying in size, but generally the size of a basketball court, and are designed to be copy and pasted into locations around the world. Our factories have been recognized by the World Economic Forum as being one of the most advanced factories in the world, implementing Industry 4.0 at scale - a lighthouse as they call it, alongside the likes of J&J, Bosch, Siemens, and other big industrial heavyweights. As our micro-factory network expands around the world, we will be able to ship parts digitally at the speed of light, producing things where they are needed, dramatically reducing waste, improving access, producing locally for what’s needed locally. It’s a new supply chain paradigm. It combines the Virtual Warehouse where you don’t store things physically; you store it in the cloud. And it also changes logistics and transportation. That’s why UPS is a partner and it’s the reason they’re adding to their earlier investments in Fast Radius and participating in our PIPE, with a $10 million commitment. They see our vision of a new mode of transportation, the Fourth Modality of Logistics. Our pilot micro-factory was made in Louisville near the UPS North American Hub. The factory has 3D polymer printing technology, and it was designed so that we could produce parts late in the evening and then put parts on a UPS plane or truck to get them where they’re needed for high-velocity fulfillment.

Overall, we are not suggesting that cloud manufacturing is going to replace all traditionally-sourced and delivered parts, but it is going to materially change them and we are excited to be part of that change. Before passing it off to Pat, I want to tie all this back into why we’re on the call today. I wanted to expand on our excitement and rationale for partnering with ENNV. Importantly, this transaction provides us $445 million in cash to fund our growth, and partnering with Doug, Tyler and the entire ENNV team will further strengthen our efforts to unlock value across the industrial landscape and puts us on a clear path to scale and drive outsized shareholder returns. We’re confident that with our Board and management team, we have taken the necessary steps to position Fast Radius for the future, and we look forward to getting to work and achieving our goals together as one company.

Now, over to Pat to talk through our financials.

 

Pat McCusker - Co-Founder, Chief Operating Officer & interim Chief Financial Officer of Fast Radius, Inc.

Thanks Lou. I’m Pat McCusker, co-founder, COO and interim CFO at Fast Radius. To jump right in, we have grown at nearly a 100% compound annual growth rate in the past four years, and expect to continue our healthy growth trajectory going forward, projecting approximately $25 million in revenue

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in 2021 and over $100 million in revenue in 2022. We have high conviction in these projections based on our existing backlog, strong customer pipeline, and a sales and marketing motion that is proven and working.

The net proceeds raised from this transaction will be deployed in high-return investments across customer acquisition, software development and micro-factory expansion. We expect these investments to yield attractive growth and EBITDA in the coming years and are targeting revenue of over $600 million and EBITDA of $135 million in 2025.

This growth will be driven by our existing customer expansion and a sales and marketing engine that is proven and working. We have three primary customer acquisition channels, each of which has shown to yield a customer lifetime value to customer acquisition cost ratio, or CLTV to CAC ratio, of 5 to 8X or more. These primary acquisition channels are digital marketing, inside sales, and business development.

On digital marketing, we have built a modern, digital marketing tech stack which allows us to surgically target late funnel, high-value prospects in a measurable, scalable way. Our inside sales channel is similarly scalable with a technology based platform which allows us to train, manage and coach our inside sales professionals to improve their prospecting and yield. And finally, we have many customers who in and of themselves represent an addressable market measured in the hundreds of millions of dollars or more. For these customers, we are investing in a higher-touch business development motion, often dedicating a meaningful portion of an engineer and sales professional’s time to onboard and expand these customers within our Cloud Manufacturing Platform.

In each of these channels, we have demonstrated an ability to acquire new customers in a cost-efficient, scalable way. And these investments are creating real enterprise value as we compare the customer acquisition costs to what we're seeing across the average customer revenue, production gross margins, customer retention rates and account expansion.

In addition to this attractive customer acquisition model, we see a strong return profile on the investments we're making in our micro-factories. A new micro-factory requires about three and a half million dollars in capex on average across equipment and infrastructure. At steady state, this yields a $4 million EBITDA contribution which works out to approximately an 18 month payback period, and an 85% five year IRR contribution. When we combine these two unit economic engines of customer acquisition and micro-factory investments, complemented by the software platform we're scaling, we believe our

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plan will yield attractive returns with breakeven EBITDA in 2023 and strong free cash flows in 2025 and beyond.

That's all for our financials. And now I'll pass it back to Tyler for final remarks about the transaction. Tyler?

 

Tyler Reeder – CEO of ECP Environmental Growth Opportunities Corp.

Thanks Pat.

The combined company will have an estimated post-transaction enterprise value of $995 million with an estimated equity value of $1.4 billion from the contribution of up to $445 million in cash proceeds from the transaction. Proceeds will consist of up to $345 million of cash held in ENNV’s trust account and an additional $100 million fully committed private investment led by a strong group of strategic and institutional investors including Goldman Sachs Asset Management, UPS and Palantir. The net proceeds raised from the transaction will be used to support Fast Radius’ continued growth across customer acquisition, software development, and micro-factory expansion. Fast Radius’ growth strategy is expected to generate revenue and EBITDA of $635 million and $135 million, respectively, in 2025.

Current Fast Radius management, employees and existing shareholders will roll 100% of their existing equity holdings into equity of the combined Fast Radius. The business combination has been unanimously approved by the boards of directors of both Fast Radius and ENNV. The business combination is expected to close in Q4 2021, subject to regulatory and stockholder approvals, and other customary closing conditions.

Upon closing of the transaction, ENNV will be renamed Fast Radius, Inc. and is expected to remain listed on the NASDAQ.

 

In summary, the ENNV and Fast Radius teams are incredibly excited about this combination. We believe Fast Radius has the right team and model to disrupt the manufacturing industry, and we look forward to working through this process together and emerging as a publicly traded Fast Radius positioned for significant growth and value creation. We appreciate your time and attention today. Thank you for joining us.END

 

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Cautionary Statement Regarding Forward-Looking Statements

This communication contains certain forward-looking statements within the meaning of the federal securities laws with respect to the proposed business combination (the “Transaction”) between Fast Radius, Inc. (“Fast Radius”) and ECP Environmental Growth Opportunities Corp. (“ENNV”). These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “scales,” “representative of,” “valuation,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. 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. 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 Transaction may not be completed in a timely manner or at all, which may adversely affect the price of ENNV’s securities, (ii) the risk that the Transaction may not be completed by ENNV’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by ENNV, (iii) the failure to satisfy the conditions to the consummation of the Transaction, including the requisite approvals of ENNV’s and Fast Radius’ stockholders, the satisfaction of the minimum trust account amount following any redemptions by ENNV’s public stockholders and the receipt of certain governmental and regulatory approvals, (iv) the lack of a third party valuation in determining whether or not to pursue the Transaction, (v) the risk that ENNV’s proposed private offering of public equity is not completed, (vi) the occurrence of any event, change or other circumstance that could give rise to the termination of the agreement and plan of merger (the “Merger Agreement”) relating to the Transaction, (vii) the effect of the announcement or pendency of the Transaction on Fast Radius’ business or employee relationships, operating results and business generally, (viii) the risk that the Transaction disrupts current plans and operations of Fast Radius, (ix) the risk of difficulties in retaining employees of Fast Radius as a result of the Transaction, (x) the outcome of any legal proceedings that may be instituted against Fast Radius or against ENNV related to the Merger Agreement or the Transaction, (xi) the ability to maintain the listing of ENNV’s securities on a national securities exchange, (xii) changes in the competitive industries in which Fast Radius operates, variations in operating performance across competitors, changes in laws and regulations affecting Fast Radius’ business and changes in the combined capital structure, (xiii) the ability to implement business plans, forecasts, and other expectations after the completion of the Transaction, and the ability to identify and realize additional opportunities, (xiv) risks related to the uncertainty of Fast Radius’ projected financial

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information, (xv) risks related to Fast Radius’ potential inability to become profitable and generate cash, (xvi) current and future conditions in the global economy, including as a result of the impact of the COVID-19 pandemic, (xvii) the risk that demand for Fast Radius’ cloud manufacturing technology does not grow as expected, (xviii) the ability of Fast Radius to retain existing customers and attract new customers, (xix) the potential inability of Fast Radius to manage growth effectively, (xx) the potential inability of Fast Radius to increase its cloud manufacturing capacity or to achieve efficiencies regarding its cloud manufacturing process or other costs, (xxi) the enforceability of Fast Radius’ intellectual property rights, including its copyrights, patents, trademarks and trade secrets, and the potential infringement on the intellectual property rights of others, (xxii) Fast Radius’ dependence on senior management and other key employees, (xxiii) the risk of downturns and a changing regulatory landscape in the highly competitive industry in which Fast Radius operates, (xxiv) the risk that Fast Radius may require additional funding for its growth plans and may not be able to obtain any additional financing on terms that are acceptable to Fast Radius, or at all and (xxv) costs related to the Transaction and the failure to realize anticipated benefits of the Transaction or to realize estimated pro forma results and underlying assumptions, including with respect to estimated stockholder redemptions. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties which will be more fully described in the “Risk Factors” section of ENNV’s Quarterly Reports on Form 10-Q, the registration statement on Form S-4 and the proxy statement/prospectus discussed below and other documents filed by ENNV from time to time with the Securities and Exchange Commission (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 Fast Radius and ENNV assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither Fast Radius nor ENNV gives any assurance that either Fast Radius or ENNV, or the combined company, will achieve its expectations.

Additional Information and Where To Find It

This communication relates to the proposed Transaction between ENNV and Fast Radius. ENNV intends to file a registration statement on Form S-4 relating to the Transaction with the SEC (the “Registration Statement”), which will include a proxy statement/prospectus that will be sent to all ENNV stockholders. ENNV will also file other documents regarding the Transaction with the SEC. Before making any voting decision, investors and security holders of ENNV and Fast Radius are urged to read the Registration

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Statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the Transaction as they become available because they will contain important information about the Transaction. Investors and security holders will be able to obtain free copies of the Registration Statement, the proxy statement/prospectus, and all other relevant documents filed or that will be filed with the SEC by ENNV through the website maintained by the SEC at www.sec.gov. The documents filed by ENNV with the SEC also may be obtained free of charge upon written request to ENNV at 40 Beechwood Road, Summit, New Jersey 07901.

Participants in the Solicitation

ENNV, Fast Radius and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from ENNV’s stockholders in connection with the Transaction. A list of the names of such directors and executive officers and information regarding their interests in the Transaction will be included in the proxy statement/prospectus when available. You can find more information about ENNV’s directors and executive officers in the final prospectus relating to ENNV’s initial public offering, which ENNV filed with the SEC on February 10, 2021. You may obtain free copies of these documents as described in the preceding paragraph.

No Offer or Solicitation

This communication shall not constitute an offer to sell or exchange or the solicitation of an offer to buy or exchange any securities, nor shall there be any sale or exchange of securities in any jurisdiction in which such offer, solicitation, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of the U.S. Securities Act of 1933, as amended.

 

 

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Exhibit 99.3

 

 

FAST RADIUS_® The First-of-its-Kind Cloud Manufacturing and Digital Supply Chain Company Investor Presentation July 19, 2021 fastradius.com

 

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Disclaimer and Risk Factors General. This presentation (this “Presentation”) is provided solely for informational purposes and has been prepared to assist interested parties in making their own evaluation with respect to (i) the proposed business combination (the   “Transaction”) between ECP Environmental Growth Opportunities Corp. (“ENNV”) and Fast Radius, Inc. (“Fast Radius”) and (ii) ENNV’s proposed private offering of public equity (the "PIPE Offering"), and for no other purpose. This Presentation is subject to update, completion, revision, verification and further amendment. None of ENNV, Fast Radius, or their respective affiliates has authorized anyone to provide interested parties with additional or different information. No securities regulatory authority has expressed an opinion about the securities discussed in this Presentation and it is an offense to claim otherwise. The information contained herein does not purport to be all-inclusive or contain all of the information that may be required to make a full analysis of Fast Radius, the Transaction or the PIPE Offering. Viewers of this Presentation should each make their own evaluation of Fast Radius and of the relevance and adequacy of the information and should make such other investigations as they deem necessary. Nothing herein shall be deemed to constitute investment, legal, tax, financial, accounting or other advice, and you should consult with your own attorney, business advisor and tax advisor as to legal, business, tax and other matters related hereto.  No representations or warranties, express or implied, are given in, or in respect of, this Presentation. To the fullest extent permitted by law, in no circumstances will ENNV, Fast Radius, or any of their respective subsidiaries, stockholders, affiliates, representatives, partners, directors, officers, employees, advisers or agents be responsible or liable for any direct, indirect or consequential loss or loss of profit arising from use of this Presentation, its contents, its omissions, reliance on the information contained within it, or on opinions communicated in relation thereto or otherwise arising in connection therewith.   Confidentiality. The purpose of this Presentation is to provide information to assist in obtaining a general understanding of ENNV, Fast Radius, the Transaction and the PIPE Offering. This information is being distributed to you on a confidential basis. By receiving this information, you and your affiliates agree (1) to maintain the confidentiality of all of the information contained herein, (2) that no portion of this Presentation may be reproduced in whole or in part and that neither this Presentation nor any of its contents may be given or disclosed to any third party without the express written permission of ENNV and Fast Radius, (3) that the information contained herein is subject to the terms of any confidentiality agreement entered into with ENNV and Fast Radius and (4) to use this Presentation for the sole purpose of evaluating the Transaction and the PIPE Offering. Any reproduction or distribution of this Presentation, in whole or in part, or the disclosure of its contents, without the prior written consent of ENNV and Fast Radius is prohibited. Forward-Looking Information. This Presentation contains certain forward-looking statements within the meaning of the federal securities laws with respect to the Transaction, including statements regarding the anticipated benefits of the Transaction, the anticipated timing of the Transaction, the future financial condition and performance of Fast Radius and expected financial impacts of the Transaction (including future revenue and pro forma enterprise value), the PIPE Offering, and the platform and markets and expected future growth and market opportunities of Fast Radius. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “scales,” “representative of,” “valuation,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. 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. Many factors could cause actual future events to differ materially from the forward-looking statements in this Presentation, including but not limited to: (i) the risk that the Transaction may not be completed in a timely manner or at all, which may adversely affect the price of ENNV's securities, (ii) the risk that the Transaction may not be completed by ENNV's business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by ENNV, (iii) the failure to satisfy the conditions to the consummation of the Transaction, including the requisite approvals of ENNV’s and Fast Radius’ stockholders, the satisfaction of the minimum trust account amount following any redemptions by ENNV’s public stockholders and the receipt of certain governmental and regulatory approvals, (iv) the lack of a third party valuation in determining whether or not to pursue the Transaction, (v) the risk that the PIPE Offering is not completed, (vi) the occurrence of any event, change or other circumstance that could give rise to the termination of the merger agreement relating to the Transaction, (vii) the effect of the announcement or pendency of the Transaction on Fast Radius’ business or employee relationships, operating results and business generally, (viii) the risk that the Transaction disrupts current plans and operations of Fast Radius, (ix) the risk of difficulties in retaining employees of Fast Radius as a result of the Transaction, (x) the outcome of any legal proceedings that may be instituted against Fast Radius or against ENNV related to the merger agreement or the Transaction, (xi) the ability to maintain the listing of ENNV’s securities on a national securities exchange, (xii) changes in the competitive industries in which Fast Radius operates, variations in operating performance across competitors, changes in laws and regulations affecting Fast Radius’ business and changes in the combined capital structure, (xiii) the ability to implement business plans, forecasts, and other expectations after the completion of the   Transaction, and the ability to identify and realize additional opportunities, (xiv) risks related to the uncertainty of Fast Radius’ projected financial information, (xv) risks related to Fast Radius’ potential inability to become profitable and generate cash, (xvi) current and future conditions in the global economy, including as a result of the impact of the COVID-19 pandemic, (xvii) the risk that demand for Fast Radius’ cloud manufacturing technology does not grow as expected, (xviii) the ability of Fast Radius to retain existing customers and attract new customers, (xix) the potential inability of Fast Radius to manage growth effectively, (xx) the potential inability of Fast Radius to increase its cloud manufacturing capacity or to achieve efficiencies regarding its cloud manufacturing process or other costs, (xxi) the enforceability of Fast Radius’ intellectual property rights, including its copyrights, patents, trademarks and trade secrets, and the potential infringement on the intellectual property rights of others, (xxii) Fast Radius’ dependence on senior management and other key employees, (xxiii) the risk of downturns and a changing regulatory landscape in the highly competitive industry in which Fast Radius operates, and (xxiv) costs related to the Transaction and the failure to realize anticipated benefits of the Transaction or to realize estimated pro forma results and underlying assumptions, including with respect to estimated stockholder redemptions. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties which will be more fully described in the “Risk Factors” section of the proxy statement / [consent solicitation statement /] prospectus discussed below and other documents filed by ENNV from time to time with the Securities and Exchange Commission (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 Fast Radius and ENNV assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither Fast Radius nor ENNV gives any assurance that either Fast Radius or ENNV, or the combined company, will achieve its expectations.  No Offer or Solicitation. This Presentation shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of the U.S. Securities Act of 1933, as amended. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Disclaimer and Risk Factors (cont’d) Use of Projections. This Presentation contains financial forecasts with respect to Fast Radius' projected gross revenue, cost of goods sold, operating expenses, gross profit, EBITDA and Free Cash Flow for 2021, 2022, 2023, 2024 and 2025.  The financial and operation forecasts and projections contained herein represent certain estimates of Fast Radius as of the date hereof and are included herein for illustrative purposes only.  Neither ENNV’s independent auditors nor Fast Radius’ independent public accountants have audited, examined, reviewed or compiled the forecasts or projections and, accordingly, do not express an opinion or other form of assurance with respect thereto. These projections should not be relied upon as being necessarily indicative of future results. In this Presentation, certain of the above-mentioned projected information has been repeated (in each case, with an indication that the information is an estimate and is subject to the qualifications presented herein) for purposes of providing comparisons with historical data. The assumptions and estimates underlying the prospective financial information are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the prospective financial information. Accordingly, there can be no assurance that the prospective results are indicative of the future performance of ENNV, Fast Radius, or the combined company after completion of the Transaction, or that actual results will not differ materially from those presented in the prospective financial information. Inclusion of the prospective financial information in this Presentation should not be regarded as a representation by any person that the results contained in the prospective financial information will be achieved.  The “pro forma” financial data included herein have not been prepared in accordance with Article 11 of Regulation S-X of the SEC, are presented for informational purposes only and may differ materially from the Regulation S-X compliant pro forma financial statements of Fast Radius for the year ended December 31, 2020 to be included in ENNV’s proxy statement in connection with the Transaction (when available). Financial Information; Use of Non-GAAP Financial Measures. The financial information and data contained in this Presentation is unaudited and does not conform to Regulation S-X. Such information and data may not be included in, may be adjusted in or may be presented differently in the Registration Statement to be filed relating to the Transaction and the proxy statement / [consent solicitation statement /] prospectus contained therein. This Presentation includes certain financial measures that have not been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”), including EBITDA and Free Cash Flow. EBITDA is defined as net income (loss) plus interest expense, net, provision for income taxes plus depreciation and amortization, net.  Free Cash Flow is defined as EBITDA minus acquisitions and capital expenditures. Except as otherwise noted, all references herein to full-year periods refer to Fast Radius' fiscal year, which ends on December 31. These non-GAAP measures are an addition to, and not a substitute for or superior to, measures of financial performance prepared in accordance with GAAP and should not be considered as an alternative to net income, operating income or any other performance measures derived in accordance with GAAP or as an alternative to cash flows from operating activities as a measure of Fast Radius’ liquidity. Not all of the information necessary for a quantitative reconciliation of these non-GAAP financial measures to the most directly comparable GAAP financial measures is available without unreasonable efforts at this time, but see slide 70 for more details regarding EBITDA and Free Cash Flow, including the reconciliation of these measures to the nearest comparable GAAP measures. Fast Radius believes that these actual and forward-looking non-GAAP measures of financial results provide useful supplemental information about Fast Radius. Fast Radius’ management uses these forward-looking non-GAAP measures to evaluate Fast Radius’ projected financial and operating performance. However, there are a number of limitations related to the use of these non-GAAP measures and their nearest GAAP equivalents. For example, other companies may calculate non-GAAP measures differently or may use other measures to calculate their financial performance, and therefore Fast Radius’ non-GAAP measures may not be directly comparable to similarly titled measures of other companies. You should review Fast Radius’ audited financial statements, which will be included in the Registration Statement. Industry And Market Data. This Presentation has been prepared by ENNV and Fast Radius and includes market data and other statistical information from third-party sources. Although ENNV and Fast Radius believe these third-party sources are reliable as of their respective dates, none of ENNV, Fast Radius, or any of their respective affiliates has independently verified the accuracy or completeness of this information and cannot guaranty its accuracy and completeness. Some data is also based on good faith estimates of ENNV and Fast Radius, which are derived from both internal sources and the third-party sources described above. None of ENNV, Fast Radius, their respective affiliates, nor their respective directors, officers, employees, members, partners, stockholders or agents make any representation or warranty with respect to the accuracy of such information. Additional Information and Where to Find It. This Presentation relates to the Transaction. ENNV intends to file a registration statement relating to the Transaction with the SEC (the “Registration Statement”), which will include a proxy statement / [consent solicitation statement /] prospectus that will be sent to all ENNV [and Fast Radius] stockholders. ENNV will also file other documents regarding the Transaction with the SEC. Before making any voting decision, investors and security holders of ENNV and Fast Radius are urged to read the proxy statement / [consent solicitation statement /] prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the Transaction as they become available because they will contain important information about the Transaction. Investors and security holders will be able to obtain free copies of the Registration Statement, the proxy statement / [consent solicitation statement /] prospectus, and all other relevant documents filed or that will be filed with the SEC by ENNV through the website maintained by the SEC at www.sec.gov. The documents filed by ENNV with the SEC also may be obtained free of charge upon written request to ENNV at 40 Beechwood Road, Summit, New Jersey 07901. Participants in Solicitation. ENNV, Fast Radius and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from ENNV's stockholders in connection with the Transaction. A list of the names of such directors and executive officers and information regarding their interests in the Transaction will be contained in the proxy statement / [consent solicitation statement /] prospectus when available. You can find more information about ENNV's directors and executive officers in the final prospectus relating to ENNV’s initial public offering, which ENNV filed with the SEC on February 10, 2021. You may obtain free copies of these documents as described in the preceding paragraph. Trademarks and Intellectual Property. All trademarks, service marks, and trade names of Fast Radius or ENNV or their respective affiliates used herein are trademarks, service marks, or registered trade names of Fast Radius or ENNV, respectively, as noted herein. Any other product, company names, or logos mentioned herein are the trademarks and/or intellectual property of their respective owners, and their use is not alone intended to, and does not alone imply, a relationship with Fast Radius or ENNV, or an endorsement or sponsorship by or of Fast Radius or ENNV.  Solely for convenience, the trademarks, service marks and trade names referred to in this Presentation may appear without the ®, TM or SM symbols, but such references are not intended to indicate, in any way, that Fast Radius, ENNV or the applicable rights owner will not assert, to the fullest extent under applicable law, their rights or the right of the applicable licensor to these trademarks, service marks and trade names. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Executive Summary Today’s presenters and transaction highlights TRANSACTION HIGLIGHTS:   Business combination of Fast Radius with ENNV  ▪ ENNV has identified Fast Radius as a unique and compelling opportunity to invest behind the Industry 4.0 mega-trends.  ECP ENVIRONMENTAL GROWTH   ▪ Fast Radius a category creator with a proprietary and defensible Cloud   FAST RADIUS, INC OPPORTUNITIES (“ENNV”) ™ Manufacturing Platform that will enable sustainable ways of making, storing and moving parts.  ▪ Fast Radius is well-aligned with ENNV’s investment thesis.  Lou Rassey Doug Kimmelman ECP (NYSE: ENNV) Transaction ▪ is a publicly listed special purpose CEO, CO-FOUNDER, CHAIRMAN structure acquisition company with $345m cash held in trust.  & DIRECTOR ▪ $100 million fully committed PIPE, including a $25 million forward purchase commitment from Goldman Sachs Asset Management, L.P. Other investors in the PIPE include UPS(3), ECP, and Palantir.  Valuation ▪ $995M pro forma enterprise value(1) with a strong balance sheet.  ▪ Implied 1.6x 2025E revenue of $635M offers an attractive   Pat McCusker Tyler Reeder valuation for a high growth business.  CFO/COO PRESIDENT, & CO-FOUNDER CEO & DIRECTOR Post-transaction, ~$410M cash on balance sheet(1)  Capital ▪ enables structure significant optionality to enhance growth, profitability and diversification.  ▪ Fully funded to expected positive free cash flow and profitability in 2025.  Ownership ▪ Existing Fast Radius shareholders will be rolling 100% of   (1) Pro forma for the transaction and assuming a $10 per share price. their equity  and will own ~63% of the combined company   (2) Assumes no redemptions by ECP Environmental Growth Opportunities Corp.’s existing shareholders and transaction expenses of approximately $35M. at closing.(2) See slide 55 “Detailed transaction overview” for key assumptions and additional details.  (3) UPS is an existing investor and currently holds a seat on the Board of Directors of Fast Radius, Inc. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Executive Summary  ECP’s founders’ long history of investing  • Chairman / Officers of ENNV have >100 years of experience in disruptive technologies  • Shifting industry tailwinds moving business interactions closer to the customer, from electricity to manufacturing and beyond  • Focus on assets with a sustainability-linked footprint  • Increasing digitalization of traditional industries  $20B+ COMMITTED CAPITAL 60+ TRANSACTIONS CONSUMMATED ~$2B+ INVESTED IN SUSTAINABLE MANAGEMENT TEAM HAS HELD  SINCE 2005 OVER LAST 10 YEARS TECHNOLOGY & SERVICES  5 CUMULATIVE PUBLIC COMPANY BOARD SEATS FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

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Executive Summary  ENNV’s investment thesis for sustainable industrial innovation aligns well with Fast Radius  ▪ ENNV is a special purpose acquisition company focused on (i) Beneficial Electrification and (ii) Sustainable Technology &   Sustainability Driven Model  Services  ▪ Fast Radius, a category-creator Cloud Manufacturing and Digital Supply Chain Company, electrifies and distributes the manufacturing process through reshoring manufacturing Transportation Emissions capacity    ✓ Unlocks value across the industrial landscape, while enabling more sustainable ways of making, storing and   moving parts Energy Consumption  ✓ Focused on a fragmented, but massive – and growing –total addressable market of $350B+  ✓ Proven business model, clear path to scale Material Extraction / Waste  ✓ Experienced management team to execute the plan  ✓ ECP conducted PE buyout-level diligence across all key functions of the business, TAM, and readiness for scale FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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O U R P U R P O S E :  Make New Things PossibleTM  O U R V I S I O N :  To build a new infrastructure to design, make, and move things in the digital age  O U R P R O D U C T :  First-of-its-kind Cloud   Manufacturing PlatformTM

 

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Executive Summary  Fast Radius at a glance  We have built the Cloud Manufacturing PlatformTM   : First-of-its-kind infrastructure to design, make, & move industrial-grade parts in the digital age  - - - --  •- - -  ....O t __.. ••'••••''' --  Manufacturing Process FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Executive Summary We are a software company…  We have built the first Cloud Manufacturing PlatformTMand infrastructure  Examples of the software-enabled customer experience  DISCOVER DESIGN MAKE FULFILL  Compare technologies and Get design insights and feedback Use a modern, on-demand user Store certified parts in our Virtual materials early in the design and before you manufacture. Powered by experience to order industrial- Warehouse™ and eliminate the need for engineering process. data captured in our micro-factories. grade parts for production. expensive and wasteful physical storage.  … like cloud computing, the Cloud Manufacturing PlatformTM will host applications and services built by Fast Radius and 3rd parties  (1) Note: Videos accessible at: Discover: fastradius.com/cmp-discover; Design: fastradius.com/cmp-design; Make: fastradius.com/cmp-make; Fulfill: fastradius.com/cmp-fulfill FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Executive Summary  … and we make industrial-grade parts  …Using a wide range ...At commercial scale, …For established blue-chip …Both in our micro-factories and of manufacturing not just prototyping industrial clients and high- using a highly-vetted network of technologies growth start-ups 3rd party manufacturers  Aerospace & Automotive & ✓ 4 micro-factories and expanding  Broad Tech Menu Defense Transportation  One-Stop Shop 11 million  PARTS PRODUCED  85,000  ✓ Additive manufacturing  Consumer Industrial CHICAGO LOUISVILLE / UPS   ✓ CNC machining WORLDPORT  UNIQUE  DESIGNS EVALUATED  ✓ Injection molding  ✓ Sheet metal  • Production runs in the 1000’s  ✓ Urethane casting Certified production  supplier Medical Technology  • for top OEMs CHICAGO CHICAGO  • In many cases, first and only ✓ Recognized by World Economic Forum as production additive supplier one of most advanced factories globally  ✓ Global supplier network Served 45 Fortune 500 companies  ✓ Brings production closer to demand About a third of revenue is from start-ups FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Executive Summary  Proof points of a quick-to-scale and resilient revenue growth engine  Fast Radius flywheel drives account expansion… …fueling rapid topline growth  >100% CAGR  96% CAGR  2017A 2020A 2025E  CUSTOMERS REVENUE FORECASTS  2,000+ 85,000 11+ 71 $24.5M $600M+  (1) unique designs million parts Net Promoter customers (1) (1) (2) 2021E 2025E evaluated produced Score  (1) All numbers are cumulative since 2017; customers refers to the number of unique companies served (2) Based on regular, automated surveys of customers; rolling average as of 4/13/2021 FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Executive Summary The Fast Radius solution at work:  Medical device demand spike during COVID-19 pandemic Problem: COVID-19 pandemic created urgent need for additional production. Incumbent supplier said no.  Solution: Fast Radius was already an approved production supplier for customer. Cloud platform evaluated part requirements – and Fast Radius said yes.  Impact: Fast Radius provided 2,000 parts in a matter of weeks, enabling shipment of life-saving medical devices in the first wave of COVID-19. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Our plan is to build the first 01 Opportunity: Next • $18T sector being re-set by Industry 4.0 & massive secular forces era of Manufacturing • $350B+ addressable market today $100+ Billion 02 Universal Problem • Rigid, wasteful, outdated manufacturing & supply chain infrastructure … leads to slow, inefficient product development processes  Cloud Manufacturing and •  03 Solution: Cloud First-of-its-kind platform, delivering design, manufacturing & supply digital supply chain company Manufacturing chain services over the internet PlatformTM • Like cloud computing, but for the physical world.  Infrastructure includes physical factories + software OS + apps and services platform  • Apps today include FR On-Demand, FR Virtual Warehouse,   FR Additive Launch… with a robust pipeline in development  04 Model built to scale • Proprietary data architecture and micro-factories, designed to ‘copy & paste’ to enable a distributed, digitally connected network  • Software apps and services platform create unique flywheel  • New physical + digital infrastructure to make & move parts globally  05 World-recognized • Validated and trusted by Fortune 500 customers across industries leader • Recognized as one of the most advanced factories in the world  • Nearly 100% revenue CAGR past 4 years.  2,000+ customers served  We are a software company…  06 Attractive growth • Plan estimated to generate $600M+ revenue in 2025 with and we make parts compelling unit economics path  07 Team uniquely • Highly-experienced, visionary team to pursue the opportunity equipped to execute FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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01 Market Context:  $350B+ growing TAM being reset by Industry 4.0 and massive secular forces FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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01 Market context  Our addressable market is $350B+ today and expected to grow to $600B+ by 2030  Our Cloud Manufacturing Platformallows TM us to participate across all manufacturing technologies  CAGR (%) Addressable production TAM by manufacturing technology, $B 20-30 610 5%  55 20%  62 3% 473 27  53 151 TAM for the   5%  368 technologies we   Additive manufacturing 9 offer today is   Sheet metal 45 120 $778B, but today we focus on   Injection molding 95 volumes <100,000 which brings the TAM to $368B  342 5%  273  CNC machining 219  2020 2025 2030  Source: “3D Printing and Additive Manufacturing Global State of the Industry” Wohlers Reports (2020), with addressable subset and projections as estimated by third-party market study  “Injection Molded Plastics Analysis and Segment Forecasts To 2027” Grand View Research (2020)”, with addressable subset and projections as estimated by third-party market study “Category Intelligence on Machining” Beroe (2020)”, with addressable subset and projections as estimated by third-party market study  “Metal Stamping Market Analysis” Grand View Research (2020), “Global Metal Stamping Market 2020 –2027” Acumen Research (2020); with addressable subset and projections as estimated by third-party market study FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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01 Market context  Large menu of technology advances is driving Industry 4.0  Combination of tools, technology, and expertise changing how we make ✓ Elements of Fast Radius and move things around the world platform  FAST RADIUS IS CONSTRUCTING THE DIGITAL THREAD THAT UNLOCKS NEW BUSINESS MODELS  ADVANCED DIGITAL FACTORIES SUPPLY INDUSTRIAL  DESIGN EQUIPMENT & OPERATIONS CHAIN INFRASTRUCTURE BUSINESS MODELS  ✓ Digital design ✓ 3D printing ✓ Industrial Internet of ✓ Digital warehousing ✓ Digital production ✓ Software platforms and and simulation Things (IOT) networks cloud-based application   ✓ Industrial robotics/ ✓ Next-gen supply ecosystem  ✓ Industrial automation ✓ Smart worker tech chain/ERP ✓ Industrial collaboration cybersecurity ✓ On-demand manufacturing platforms ✓ Machine tool ✓ Workflow automation Warehouse and supply chain apps innovations automation technologies ✓ IOT sensors  ✓ Knowledge Industrial ✓ Digital-first customer automation ✓ Testing and wearables Autonomous transport ✓ IOT connectivity experience and business measurement processes  ✓ Artificial Intelligence Industrial  / Machine Learning ✓ Advanced materials drones & satellites ✓ Data and insight flywheels  AR/VR FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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01 Market context  Market is undergoing fundamental disruption with multiple strong tailwinds behind Cloud Manufacturing  Industry 4.0 is here. People want (expect) easy and Global appetite for more agile, local Expertise is scarce. modern experiences. and sustainable supply chains.  Industry 4.0 brings unprecedented innovation • “Consumerization of B2B” and digital-first • Need for a cleaner, more sustainable industry across tools of AI, design, production, experiences fulfillment, including industrial-grade additive • Supply chain insecuritiesand inefficiencies manufacturing • On-Demand fulfillment is now expected made evident by COVID-19 pandemic  There is a skills gap for Industry 4.0 • 2020 pandemic accelerating new ways of • Push for local sourcing / reshoring working and collaborating remotely Traditional manufacturing expertise is being • Global trade tensions threaten supply lost as “mom and pop” shops close down FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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02 Universal Problem:   Lack of new, trusted manufacturing & supply chain infrastructure… leads to slow, inefficient product development processes. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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02 Universal Problem  Outdated infrastructure  Current state of making and moving physical products is rigid, wasteful, and inaccessible  Centralized Slow-moving, Massive physical Sub-scale mega-factories carbon intensive  inventory operators supply chains  Minimum order sizes in the Moving parts by air, land, Trillions of dollars tied up; Minimal investment in millions and sea is slow and hugely inefficient Industry 4.0; limited expensive transparency / insights FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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02 Universal Problem  Outdated infrastructure  Most component manufacturing is done by a highly-fragmented set of small suppliers  US machining production TAM1, $B    Approximately 90% of US machining output is via small and smaller-medium business We are disrupting the highly fragmented small-to-medium volume manufacturing   15  15 market – the opportunity set for Fast Radius is significant  10 8  5  5 4 3 2 $0  0-4 5-9 10-19 20-99 100-499 500+ # of employees  5% 8% 14% 41% 21% 11% Share of total, %  8,350 3,644 2,810 2,539 356 130 # of firms  Source: Third party market study.  1. Figures represent revenue and is a proxy for the respective mfg. process based on 2017 U.S. Census.  2. Business organization consisting of one or more domestic establishments in the same geographic area and industry that were specified under common ownership or control. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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02 Universal Problem  Painful product development processes  This industry structure creates pain across the lifecycle for an engineer – entire experience is rigid, outdated, and the needed expertise and infrastructure is out of reach  DISCOVER DESIGN MAKE FULFILL  “I read something new “I don’t need 1 million; “My supplier can’t “I can order my cereal about additive every why can’t I serve my demand on-demand, but my day, but where do I economically design spike for COVID custom parts are start?” product variants I supplies?” going to take know my customers months?” want?”  “How do I best design “The process to “Additive sounds “Why can I see where this part so it can be communicate with my great, but we have no my pizza is, but not my made well at the right suppliers feels like certified production part?” price?” 1995.” suppliers.”  Example customers Note: Quotes are representative sentiments of specific customers, but not direct quotes FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud  Manufacturing Platform  : TM  New digital and physical infrastructure to design, make and move industrial parts in the digital age FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Cloud Manufacturing creates a new industrial infrastructure  Shifts the manufacturing industry from being rigid, wasteful and inaccessible…. to flexible, sustainable, and accessible  From Rigid Wasteful Inaccessible  Centralized Slow-moving, carbon-intensive Massive Sub-scale Mega-factories supply chains physical inventory operators  To Flexible   Sustainable Accessible  Localized Shipping at the speed Digital At-scale Industry 4.0, micro-factories of light, in a more inventory with real-time insights sustainable way FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Next generation customer experience  Cloud Manufacturing PlatformTMeases the pain across the lifecycle for an engineer –making manufacturing easier, smarter and more capable  DISCOVER DESIGN MAKE FULFILL  “Fast Radius helped “Fast Radius helped “When COVID hit, “Fast Radius cut lead us understand where us launch a new Fast Radius produced times for critical parts additive fits in our variant for Ford F- a mission-critical from months to supply chain and now 350 trucks that was component when our days.” we’re using it.” previously not incumbent suppliers economically viable.” said no.”  “Fast Radius helped “The Fast Radius “Two years ago we “We’ve never seen us understand how to collaboration tools didn’t have a certified this level of make a new make so much sense supplier for additive.  transparency into the geometry previously –why wasn’t this Now we do.  Fast production and impossible for a new available before?” Radius is making fulfillment of our product launch.” parts we’re putting on parts – and we buy a cars.” lot of parts!”  Example customers Note: Quotes are representative sentiments of specific customers, but not direct quotes FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Introducing the Fast Radius Cloud Manufacturing PlatformTM  The first-of-its-kind platform for driving innovation in manufacturing… just as seen in cloud compute  Our platform  Our product is a Cloud Customer-facing application and services platform.   ManufacturingPlatformTM that Applications & allows engineers to get Services insights and parts on-demand when they need them Software OS platform to power the end-to-end customer experience; designed for apps to be built on top.  Provides scalable, Operating System Manufacturing and supply chain. cutting-edge access to Marketing, sales, engineering, customer success. manufacturing for everyone with a browser Learning Engine & Digital Thread is the DNA of how every part is made. Delivers real-time actionable Digital Thread Learning Engine allows us to analyze the data we intelligence across the collect, getting smarter with every partwe make. product lifecycle Platform designed for new Production centers (our factories + our suppliers) make Infrastructure parts through a software-driven workflow; collect data applications and services to   (factories + data) across the manufacturing process. be built from Fast Radius and 3rd party developers

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Upload your design, and you get insights in minutes, and parts within days… and whenever needed thereafter.  ▪ From discovery through fulfillment  ▪ Cutting-edge additive manufacturing tech and traditional machining and molding  ▪ For prototypes to mid-volume production  Highlights:  ▪ Our platform is Powered by Software. You Partner with People. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Customer Case Study:  Curtiss Motorcycles  Problem Curtiss Motorcycle designed a new electric motorcycle but was struggling to manufacture various components.  Solution Curtiss relying on Fast Radius platform to manufacture over 100 parts on the bike across 8 manufacturing technologies.  Impact Curtiss brings a new electric motorcycle to the world in 2021. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Curtiss Motorcycles: 2021 From 60 to 200+ parts in 18 months  10x+ sales  Ongoing engagement started with one growth(1) technology (CNC) to multiple processes across traditional and additive.  2020  2019  1 Unique Design / 65+ Parts 1 Unique Design / 120+ Parts 2 Unique Designs / 225+ Parts   Note:  images are not the actual part images, but are representative of the types of customer parts in production (estimated) (1) YTD 2021 sales growth of ~7.5x, but based on verbal commitments, estimated sales growth of 10x+ in 2021 vs. 2019 FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Comparison Tool  A central question for every engineer is “what is the best way to make this part?”  Engineers can instantly compare manufacturability, price, and other key attributes across multiple technologies and material types.  Most engineers aren’t familiar with the latest  Industry 4.0 innovations and this allows them to learn and adopt new ways of making parts. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Automated quoting and ordering portal  Platform uses machine learning to provide time design feedback and pricing across of manufacturing technologies and materi  Once the design and quantities are finali platform guides the engineer through a ecommerce checkout process.  After the order is placed, platform provide transparency across the production and stages. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  We partner with you from design through launch to bring new products to market, embracing cutting-edge additive manufacturing and new tools of digital design, complemented by traditional manufacturing technologies.  Highlights:  ▪ Design for additive ▪ Digital / ▪ Industrial-grade manufacturing computational production and design tools (e.g., quality system for generative design) additive FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Customer Case Study:  Aptiv & Ford: Industrial-grade quality and production with additive manufacturing  Problem Ford wanted to create a low-volume variant of the F-350 truck. Traditional molding economics and supply chain didn’t work.  Solution Fast Radius Cloud Manufacturing Platform TM helped Aptivvalidate design and manufacture the part with industrial-grade additive.  Impact Ford provided a new variant of the F-350 to meet latent demand. Fast Radius now a certified supplier for Aptiv, 1 part grew to 26+ in 2020.  Note: Video accessible at fastradius.com/aptiv-video FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Insights… Automated manufacturability feedback  We are using machine learning to codify a century’s worth of manufacturing knowledge…  and empower every engineer with it, on-demand.  Today’s platform provides automated design and manufacturability feedback on cutting-edge additive manufacturing and CNC machining.  Platform continues to expand – new technologies, materials, manufacturing and supply chain analyses. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Example automotive customer:   2020  From 1 Part to 26 in 12 months  4programs (26 individual SKUs) running in parallel with others in development 3x+ revenue Engaged with engineering groups across growth customer and its subsidiaries `  2019  1 OEM  / 1 Engineer / 1 Part 4 OEMs 16+ Engineers 26+ Parts FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Production parts certified (“Build Package”) and can be produced when and where needed. No longer requires physical storage – can produce exactly how much is needed just in time.   Highlights:  ▪ Reduces waste across supply chain –faster turnaround times, no obsolescence, no physical warehouse FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Customer Case Study:  Satair: The Virtual WarehouseTM  Problem Satair(Airbus subsidiary) wanted to dramatically improve the months-long turnaround times for maintenance parts.  Solution Fast Radius on-boarded key maintenance parts to the Virtual Warehouse™, reducing turnaround times from weeks to days.  Impact On-demand tools when and where they’re needed to keep planes flying. Satairhas a certified Virtual   Warehouse™ that continues to expand. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Internal workflow and orchestration powers Virtual WarehouseTM  Parts are stored in our Cloud Manufacturing Platform , including TM the full manufacturing instructions.  Customers can order replenishment parts from the   Virtual Warehouse TM   and have certainty that the part they order in two years will be the same quality part as what they order today. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Fast Radius Beyond  Where will Fast Radius and Cloud Manufacturing take us?  ... in the next year ... in the next 5+ years  Expanded Services and Apps Personal AI Assistant Virtual Warehouse TMXR  Virtual factory Data gathered from millions of different Millions of certified parts and products parts… and insights from millions of available in the cloud Manufacturing comparison experts… organized and universally accessible in software. Globally coordinated infrastructure to advance the state of the world; for example:   Design collaboration   Add-in conversational AI, e.g., What’s the • Strategic National Bank for Crisis Response best way to make this?  How long will it • Space Exploration +a portfolio of new apps on take?  What is the carbon impact? the roadmap FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution Note: images shown are illustrative of software roadmap; not actual depictions of the user interface.

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  AI Assistant  Data gathered from millions of different parts… and insights from millions of experts… organized and universally accessible in software.  Add-in conversational AI, e.g.:  What’s the best way to make this?  How long will it take?  What is the carbon impact?

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  WarehouseTM XR  Globally coordinated infrastructure to advance the human condition  Strategic National Bank for Crisis Response Space Exploration

 

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Fast Radius Beyond  Where will Fast Radius and Cloud Manufacturing take us?  4th Modality of Logistics  By Fast Radius  Over the coming decade, a global network of interconnected micro-factories will take shape  Instead of moving parts by land, air, and sea… the Cloud Manufacturing Platform TM  can allow parts to move digitally.  Parts can be shipped digitally and made where they are needed. UPS has partnered with Fast Radius to support the expansion of its digital manufacturing and supply chain infrastructure.  One of the Fast Radius micro-factories is located on UPS’ Worldport hub in Louisville, KY.  ”We're witnessing a transformation of manufacturing supply chains that’s ushering in the fourth modality of logistics”  - Scott Price, EVP International UPS(1)  Note: https://www.ups.com/us/es/services/knowledge-center/article.page?kid=art16a43cf1d5c&articlesource=longitudes FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  Fast Radius’ Cloud Manufacturing Platform  provides tangibleTM and powerful benefits  Similar to the benefits of cloud computing  ACCESS SPEED ELASTICITY  Our cloud gives anyone access to Innovation and production in With our cloud, use only the resources manufacturing services across the manufacturing has never been faster. you need:  Scale-up with your demand.  product lifecycle that can be With access to groundbreaking new A few parts vs. a few thousand, infinite accessed wherever and whenever technologies like industrial-grade digital warehouses vs wasteful you need them.  additive manufacturing, and simplified physical storage, and on-demand SUSTAINABILITY supply chains, customers can get their human expertise when you need it vs. parts in days instead of months. constant hiring.  Making, storing and moving parts through the Cloud Manufacturing   Platform TM reduces emissions from transportation, reduces waste from   COST storage and obsolete inventory… while empowering engineers to   KNOWLEDGE GLOBAL REACH ADVANTAGE make smarter design choices from   the start. The data collected through our micro- With a combination of our growing With our Cloud Manufacturing factories and supplier network feeds network of internal micro-factories PlatformTM   , capital expenses (factory our learning engine on top of which all and our extensive international equipment, physical storage,  of our apps and services are built.  supplier network, parts are where you maintenance) are traded for variable Software makes this knowledge need them when you need them. expenses (production and virtual universally available. warehousing) when you need them.    We bring advanced manufacturing technologies many companies couldn’t afford to invest in alone. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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03 Fast Radius’ Cloud Manufacturing PlatformTM  The Cloud Manufacturing Platformcan enable more sustainableTM ways of making, storing and moving physical products  Transportation Energy Material Emissions Consumption Extraction  Local on-demand micro-factory Bundling together digital warehousing Additive manufacturing enables model enables on-shore and local on-demand part production optimized part design, and production, cutting off significant enables reduction in inventory reduction in consumption of amounts of transportation reductions and cuts the emissions production materials emissions generated by the warehousing  Making, storing and moving parts through the Cloud Manufacturing Platform TM   reduces emissions from transportation, reduces waste from storage and obsolete inventory… while empowering engineers to make smarter design choices from the start. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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04 Model built to scale:  Proprietary micro-factories and go-to-market designed for hyper growth.  Apps and services platform creates unique flywheel. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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04 Model built to scale  Footprint at a glance  CHICAGO HQ and 3 micro-factories  LOUISVILLE Factory on UPS North American hub Fast Radius was recognized as a World Economic Forum “Lighthouse”  ATLANTA Sales office  SINGAPORE Regional office (Supply Chain) 2018 1 of 9 most advanced factories in the world, only 1 in the US  HONG KONG Regional presence (Supply Chain)(1)  PLUS  Chicago, USA Garbagnate, Italy Le Vaudreuil, France  Global network of Trusted suppliers across CNC machining, trusted suppliers injection molding, urethane casting, and other manufacturing techniques  Qingdao, China Rakona, Czech Cork, Ireland Republic  Bad Pyrmont and Wuxi, China Chengdu, China Blomberg, Germany  2019 1 of 14 “End-to-End connected value chain lighthouses” for factory network + software platform  Source: https://www.weforum.org/press/2018/09/europe-asia-lead-the-way-to-the-factories-of-the-future  (1) Fast Radius has independent contractors in Hong Kong http://www3.weforum.org/docs/WEF_Global_Lighthouse_Network.pdf FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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04 Model built to scale  The Fast Radius Micro-factory  The “factory in a box” is designed to be copy and pasted for scale  Each micro-factory identifies and controls an extensive set of variables to drive reliability and repeatability  Includes detailed physical and digital architecture  Full integration with Cloud Manufacturing Chicago infrastructureand digital workflow  Carbon DLS Micro-factory FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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04 Model built to scale  Current micro-factories  Four micro-factories currently power our cloud  Digital Light HP Multi Fused Deposition CNC Synthesis Jet Fusion Modeling Machining  Chicago Chicago Louisville / UPS Worldport Chicago  Other operational technologies include Carbon L1, Desktop Metal Studio System, FormlabsStereolithography,  HP MJF 580, Doosan CNC, and Faro Metrology. These owned and operated micro-factories are complemented by a global Technologies in evaluation include HP Metal Jet, Desktop Metal Production System, Velo3D and network of curated suppliers.  EOS Laser Powder Bed Fusion, Zeiss Metrology, and Fanuc Automation. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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04 Model built to scale  How do micro-factories scale?  The global cloud infrastructure provides production scale capacity and resiliency.  Overview  The “factory in a box” is designed to be copy and pasted for scale.   Standard physical infrastructure and workflows to enable a common, proven way of working globally.   Nodes deployed to expand capacity in existing locations and new geographics – some proximate to partners (e.g., UPS).  Digital orchestration from Chicago HQ.  Benefits at scale  Attractive unit economics with minimal capital – efficiencies in cost, operations, and ability to tightly match supply with demand.  Learning Engine allows the network to get smarter with every part. Supply chain sustainability via more localized production.  Production network resiliency and cost efficiencies. Making one of the world’s most advanced factories accessible to all  Unlocks digital supply chain solutions – 4th Modality of Logistics and Virtual Warehouse™.  Illustrative roadmap; immediate focus in US, new geography sites TBC FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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05 World-recognized leader:  Validated and trusted by Fortune 500 customers; one of the most advanced factories in the world; nearly 100% revenue CAGR past 4 years FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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05 World recognized leader  Validation from partners, customers, and broader ecosystem  Exclusive partner Industry leading Net Recognized by Real commercial Certified production with UPS Promoter Score World Economic and operational supplier for top Forum traction(2) OEMs  11 million  71 • Passed rigorous quality   PARTS PRODUCED audits with leading   Fortune 500 OEMs (1) across industries  NET PROMOTER SCORE 85,000  • In many cases, Fast UNIQUE PARTS EVALUATED Radius is the first and only production additive supplier providing parts Micro-factory located at NPS that  rivals 2,000+ to these customers  • • WEF recognized FR as UPS Worldportin Apple, Nordstrom, one of the 9 most   CUSTOMERS SERVED  Louisville, KY and other top brands advanced factories in the world(3)  (1) Based on regular, automated surveys of customers; rolling average as of 4/13/2021 (2) All numbers are cumulative since 2017  (3) https://www.weforum.org/press/2018/09/europe-asia-lead-the-way-to-the-factories-of-the-future; http://www3.weforum.org/docs/WEF_Global_Lighthouse_Network.pdf FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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05 World recognized leader  Fast Radius Customers  Over 2,000 customers served across 6 major industries, including 45 Fortune 500 companies.  INDUSTRIAL TECHNOLOGY CONSUMER  Example Customers: Example Customers: Example Customers:  AUTOMOTIVE & AEROSPACE &   TRANSPORTATION DEFENSE MEDICAL  Example Customers: Example Customers: Example Customers: FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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05 World-recognized leader Fast Radius flywheel drives  account expansion Example customers:  Over the past ~18 months, accounts grew from 1 part and 1 engineer to…  50+ parts, 2019 prototypes →2020 production of $350k →2021 forecast of $600k+ 65 parts, $100k+ in quarterly bookings, 9 engineers 26 parts, 16 engineers 100+ parts, 8 technologies 47 parts, 20+ engineers  114 parts, 2 engineers ` 47 parts, 5 engineers FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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05 World-recognized leader  Early proof points of quick-to-scale and resilient revenue growth engine  Year-on-year Revenue  ($ millions)  24.5  2017 – 2021   CAGR: 96% CAGR: 72%  13.9  8.3  2.9 1.9  2017 2018 2019 2020 2021 FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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06 Attractive growth path:  Plan estimated to generate $600M+ revenue in 2025 with compelling unit economics FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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06 Attractive growth path  Established, top-tier unit economics for customer acquisition and micro-factory scale  Established customer acquisition model Established unit economics of a typical micro-factory(3)  (1)  CLTV / CAC 5x – 8x Capital investment ~$3.5 million  Payback period ~6 months Run-rate EBITDA ~$4.0 million  (2)  Top quartile SaaS CLTV / CAC: 8x Payback period ~1.5 years  Fast Radius CLTV / CAC among best-in-class SaaS peers  5-year IRR ~85%  (1) Represents customer lifetime value (CLTV) / customer acquisition cost (CAC); we define a “Customer” as an engineer or pod of engineers working on a product; CLTV based on projected 5-year revenue and gross margin, adjusted for projected customer retention rates and discounted at a 15% annual discount rate over 5 years; CAC calculated based on average cost per new customer opportunity across various acquisition channels adjusted for average win rate of these new opportunities.  (2) Source: 3rd party consulting firm industry survey  (3) Typical micro-factory profile; some variation by technology and scale FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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06 Attractive growth path  Positioned for accelerated growth and attractive profitability  Summary pro-forma financials Key growth drivers  ~$2,100  ($ millions) $350+ billion addressable, growing market driven by next-gen manufacturing technologies, including   Revenue CAGR: $635 additive +115%  Proven customer acquisition strategy to capture a larger share as the industry consolidates  $426 ~55%  50% Network effect and a virtuous cycle from software 48% platform (e.g., Virtual Warehouse™), which   43% promotes customer stickiness $246 Ongoing addition of services and apps on software   29% platform provides significant software revenue 21% upside  14% $103  Continued implementation of micro-factory expansion projected to reach steady-state gross $25 margins of 50%+ $14  Opportunistic acquisitions to further accelerate   '20A '21E '22E '23E '24E '25E '30E capability and geographic expansion Revenue Gross margin FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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06 Attractive growth path  Scalability of business expected to result in significant operating leverage and strong free cash flow generation  Operating expenses as % of revenue EBITDA & Free Cash Flow  ($ millions) ($ millions)  135   EBITDA  166% FCF 89 151%  47 $635   0.3 80% $426   (19) (19) (24) (36) $246 (47) (52) (47) 37% 28% 43% $103 $14 $25   (133)  (1)  ‘20A(1)  ‘21E ‘22E ‘23E ‘24E ‘25E ‘20A ‘21E ‘22E ‘23E ‘24E ‘25E  Revenue Opex as % of revenue  (1) 2020 numbers are pending final audit results FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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07 Team:  Highly-experienced, visionary team to pursue the opportunity FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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07 Team  Highly-experienced, visionary team to pursue the opportunity  Lou Rassey Pat McCusker Bill King, PhD  CEO, Co-Founder, and Director CFO/COO and Co-Founder Chief Scientist and Co-Founder  Founded McKinsey’s Digital Manufacturing Experience growing public-company and tech- Architect and founding CTO of US national lab Practice, globally renowned expert on Industry 4.0 driven businesses; President, North America of for digital manufacturing and design; former INWK, successful tech entrepreneur advisor to DARPA; professor at U of Illinois  John Nanry Gus Pinto James Levin  Chief Manufacturing Officer and Co-Founder Chief Product Officer Chief Marketing Officer  Led McKinsey’s Digital Manufacturing Practice, Serial tech platform builder; led development of Helped build Amazon's fastest startup to broad expertise implementing new technologies spatial computing platform at Magic Leap, hit $1BN in sales; led marketing at mobile and cloud infrastructure at Citrix SolarWinds through IPO  Heather Baker Brian Simms Bobby Bott  VP, People VP, Sales VP, Manufacturing  Extensive experience scaling strong people Proven sales leader, scaled multiple companies Seasoned manufacturing executive; led function within high-growth technology through hyper growth and IPOs; led sales at manufacturing operations across multiple sites companies Groupon on way to fastest ever ramp to $1B in within the aer efense industry revenue FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix A Transaction & valuation overview

 

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Appendix A  Fast Radius is creating an entirely new category in Industry 4.0  Software  Spanning software, manufacturing, and on-demand infrastructure  On-Demand Manufacturing Platforms & Infrastructure FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix A  Detailed transaction overview  Key transaction terms Illustrative pro forma valuation ($m)  ▪ Pro forma enterprise value of $995m (1.6x 2025E revenue) Fast Radius share price $10.00  ▪ Pro forma shares outstanding 142.3 $410m cash proceeds inclusive of $100m PIPE proceeds and transaction expenses(1) Pro forma equity value $1,423  (-) Assumed pro forma net cash (2) ($428)  ▪ $100 million fully committed PIPE, including a $25 million forward Pro forma enterprise value $995 purchase commitment from Goldman Sachs Asset Management, L.P. Other investors in the PIPE include UPS, ECP, and Palantir.  Transaction Multiple Metric  ▪ Fast Radius rolling 100% of equity ownership EV / 2025E Revenue $635 1.6x  ▪ 10m earnout share to sellers with 50% earned at $15.00 and 50% Illustrative sources and uses ($m, except per share data) earned at $20.00 (2)  Sources $ % Shares  Seller rollover(3) $900 63% 90.0  Pro Forma ownership @ $10.00 / share(1) SPAC cash in trust 345 24% 34.5  Additional PIPE equity 100 7% 10.0 Founder shares(4) 78 5% 7.8  SPAC shares  24% Total sources $1,423 100% 142.3 Uses $ %  Seller rollover Seller rollover $900 63%  Founder   63% shares 5% Cash to balance sheet 410 29% Founder shares 78 5% PIPE Estimated fees and expenses 35 2% equity 7%   Total sources $1,423 100%  (1) Assumes no redemptions and excludes dilutive impact of 8,625,000 public warrants (strike price of $11.50) and 6,266,667 SPAC sponsor warrants (strike price of $11.50); illustrative amounts may fluctuate as a result of redemptions. (2) Earnout vests upon the common stock trading above the relevant threshold for 20 trading days in any 30-day trading day period prior to the 5th anniversary of closing.   (3) Pro forma net cash calculated as Fast Radius’s net cash balance of $18m as of 12/31/2020 and transaction proceeds of $410m.  (4) Seller rollover excludes deferred portion (5,000,000 shares are deferred until the combined company achieves a VWAP of $15.00, and another 5,000,000 shares are deferred until the combined company achieved a VWAP of $20.00) .  (5) Founder shares exclude deferred portion (5% of ECP’s promote, or 407,000 shares, is deferred until the combined company achieves a VWAP of $15.00, and another 5% of ECP’s promote, or 407,000 shares, is deferred until the combined company achieves a VWAP of $20.00) . FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix A  Selected public comparable universe for Fast Radius  Industry 4.0 industrial automation Industry 4.0 additive manufacturing  ▪ Disruptive, technology-enabled industrial automation ▪ “New generation” additive manufacturing (i.e. 3D printing) companies machine makers: Desktop Metal, Markforged, Velo3D  ▪ Different business models to Fast Radius, but similar Industry ▪ Software platforms enabling additive manufacturing: Materialise 4.0 driving forces  ▪ These are additive technology-focused businesses vs. Fast Radius, which is technology agnostic  Advanced manufacturing Category-leading enterprise SaaS  ▪ Global leaders providing the technology backbone for complex ▪ Enterprise-focused SaaS platforms driving commercial / products / processes by combining design, software and industrial innovation advanced manufacturing capabilities  ▪ Different business models to Fast Radius, but similar cloud   ▪ Typically oriented towards specific industries or use cases vs. computing thematics Fast Radius which is industry agnostic and focused on industrial-grade production runs FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix A  Selected peers operational benchmarking  Industry 4.0 industrial automation Industry 4.0 additive manufacturing Advanced manufacturing Category-leading enterprise SaaS  CY’20A – Average: 70%(1) Average: 67%(1) Average: 19% Average: 17% CY’22E DeSPACAverage: 89%(1) Overall average: 40%(1)  245%   Revenue CAGR  172%   126% 99% 118% 113% 85% 92% 71% 68% 58%   32% 26% 26%   19% 16% 21% 17% 18% 16% 13% 11% 10%   20–22E 21–25E 20–22E 21–25E 20–22E 21–25E 20–22E 21–25E 20–22E 21–25E 20–22E 21–25E  CY’22E Average: 58%(1) Average: 55%(1) Average: 58% Average: 86% DeSPACAverage: 52%(1) Overall average: 66%(1)  Gross   94%   margin 89% 89%   80% 82% 77% 76% 59% 62% 57% 50% 52% 52% 49% 52% 50% 48% 51% 38% 29% 34% 23% 12%   20–22E 21–25E 20–22E 21–25E 20–22E 21–25E 20–22E 21–25E 20–22E 21–25E 20–22E 21–25E  (2) (2) (2)  Source: Fast Radius’ projections based on management estimates; peer projections based on company filings and FactSet as of July 14, 2021. Note: NA denotes “not available”. NM denotes “not meaningful”.  (1) Averages include Desktop Metal’s, Markforged’s, Berkshire Grey’s, Velo3D’s and Bright Machines’ CY’21E-CY’25E sales CAGR and CY’25E gross margin.  (2) Berkshire Grey announced its merger with Revolution Acceleration on February 25,2021; Velo3D announced its merger with JAWS Spitfire on March 23, 2021; Bright Machines announced its merger with SCVX on May 19, 2021; projections for Markforged, Berkshire Grey, Velo3D and Bright Machines reflect management guidance from PIPE presentation. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix A  Selected peers valuation benchmarking  Industry 4.0 industrial automation Industry 4.0 additive manufacturing Advanced manufacturing Category-leading enterprise SaaS  EV/ Average: 15.0x (1) Average: 10.8x (1) Average: 9.7x Average: 12.6x CY’22E DeSPACAverage: 14.3x (1) Overall average: 11.9x (1)  Revenue  18.8x   18.1x     16.0x     15.0x     13.7x   13.5x   13.3x   12.9x   12.3x   11.2x   9.7x 10.0x     9.3x   9.3x   8.5x     4.1x   4.4x   2.9x   2.4x   2.3x   1.9x   1.6x   1.6x     2022E 2025E 2022E 2025E 2022E 2025E 2022E 2025E 2022E 2025E 2022E 2025E  (2) (2) (2)  Source: Fast Radius’ projections based on management estimates; peer projections based on company filings and FactSet as of July 14, 2021. Note: NA denotes “not available”. NM denotes “not meaningful”.  (1) Averages include Berkshire Grey’s, Bright Machines’, Desktop Metal’s, Markforged’sand Velo3D’s EV / CY’22E revenue.  (2) Berkshire Grey announced its merger with Revolution Acceleration on February 25,2021; Velo3D announced its merger with JAWS Spitfire on March 23, 2021; Bright Machines announced its merger with SCVX on May 19, 2021; projections for Markforged, Berkshire Grey, Velo3D and Bright Machines reflect management guidance from PIPE presentation. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix A  Transaction priced at a discount to selected peer multiples  Implied EV based on selected comparable companies trading Transaction value  ($ in millions)  Implied discounted EV  Implied future EV Implied post-money EV (Discount rate: 20%)  $6,346 Mid-point represents ~410%upsideto transaction value $3,672 Mid-point $3,807 represents ~195%upsideto transaction value $2,203 $995  Implied multiples  EV / CY 2025E Revenue 6.0x – 10.0x 3.5x – 5.8x 1.6x  Valuation ▪ Using a future valuation date of 6/30/2024, Fast Radius is valued by applying 2025E revenue of $635m to an EV/ NTM revenue multiple of approach 6.0 – 10.0x based on peer multiples to arrive at an implied future EV  ▪ The implied future EV is then discounted at a 20% discount rate over a 3-year period to arrive at an implied present value, which we believe to be appropriate and implies an attractive valuation entry point relative to other recent and successful Industry 4.0 de-SPAC transactions FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix B  The Fast Radius   Cloud Manufacturing Platform^TM  Introduction (CMP-101)

 

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Appendix B  Fast Radius Cloud Manufacturing Platform TM – Introduction (CMP-101)  The Fast Radius   Applications &   Cloud Services  Manufacturing Operating System  Platform  TM  Learning Engine & Digital Thread  At Fast Radius, we have built the world’s first Cloud Infrastructure   (factories + data)  Manufacturing PlatformTM , delivering design, manufacturing & supply chain services over the internet. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix B  Fast Radius Cloud Manufacturing Platform TM – Introduction (CMP-101)  What is the Cloud How does it work? What can be done with cloud Manufacturing PlatformTM? manufacturing?  The  Cloud Manufacturing Platform has an integratedTM  Cloud manufacturing is the delivery of tech stack that consists of physical and digital The Cloud Manufacturing Platform has a set ofTM manufacturing-related services over the internet. infrastructure. applications and services provided by Fast Radius, accessible to anyone with a web browser. Fast Radius has built the world’s first It is just like cloud computing, but for physical parts.  Cloud Manufacturing Platform ™   . Today, Fast Radius applications  include:  • Software + Physical Factory Infrastructure  Cloud Cloud   • Platform provides access to state-of-the art Computing Manufacturing manufacturing capacity…  and access to the data and insight from how and when things are Physical Data center Factory made infrastructure network network  • Services cover the end-to-end experience of   Software Software to Software to bringing a physical, custom part to the world Similar to cloud computing, it is a platform for to orchestrate orchestrate  orchestrate innovation and designed for others to build upon.    DESIGN MAKE FULFILL the work data data and   DISCOVER part production  Fast Radius has a roadmap for expanding these core applications, while also launching new  software and Software Designed for Designed for services through an application ecosystem. application apps to be built apps to be built layer on top on top FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix B  Learning Engine: The ‘build package’ is a critical technology behind cloud manufacturing  Akin to the Manufacturing Genome – the DNA of every part  Contains manufacturing instructions  • Including part design, process instructions, material choice, quality information  Contains information on the life of the part  • Actual data from part production (machine data, materials lot, metrology) and supply chain  The build package allows us to digitally transport parts and produce them anywhere in the world in our certified micro-factories  • Enables portability through cloud manufacturing  • Ensures every part is correct, wherever it is made  Enables continuous improvement  • Users can update their designs  • We learn and get better from every part FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix C  Additional Information

 

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Lou Rassey Lou Rasseyis Co-Founder and CEO of Fast Radius.  He has had a 20-year career in the manufacturing sector, and is a recognized leader and advisor on matters related to manufacturing, technology and   CEO, Co-Founder & competitiveness. Director  Lou spent 11+years at McKinsey & Co., where he was a Partner focused on manufacturing, industrial innovation & private equity.   He also founded Two Roads Group, an industrial-tech focused investment firm, and spent the first chapter of his career as an engineer in the auto industry with Chrysler and BMW.   Prior experience and educational qualifications  • From 2003-2015, Lou was a Partner and helped - Led McKinsey's global research and advisory • Lou helped set the strategy and 2015 launch of lead the Manufacturing & Private Equity efforts on digital in industry (Industry 4.0) – the Digital Design and Manufacturing Innovation Practices at McKinsey & Company.  e.g., industrial internet, 3D printing, advanced Institute (DMDII, now called MxD) in Chicago. Contributions include: robotics, breakthrough business models.    • Lou holds a Bachelor of Science in Mechanical   - Co-led McKinsey’s global research report and • Founder and CEO of Two Roads Group (TRG), an Engineering from Notre Dame; a Masters of client advisory efforts on the ‘Future of investment and advisory firm focused on Science in Engineering Management from the Manufacturing’ and its implications on how industrial technologies. University of Michigan – Dearborn; a Masters of countries and companies compete. Science in Mechanical Engineering from MIT,   • Lou started his career as a product and and an MBA from MIT Sloan  - Architected and led the execution of many manufacturing engineer with Chrysler and then corporate performance transformations – helped with the launch of a Chrysler-BMW joint • Lou lives in Chicago with his wife, Sarah, and across innovation, product development, venture (TritecMotors) in Brazil. their three children. manufacturing, purchasing, supply chain,   • Lou has been a Board Member or Board Advisor commercial / go-to market to a number of industrial and technology   - Led the development of McKinsey’s companies, including Dedicated Computing playbooks and service lines for private equity (industrial computing), Sight Machine (digital due diligence and integrated corporate analytics), and Rescale (digital design and performance improvement. simulation in the cloud). FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix C  Our addressable market today is $350B+… with upside as the  Cloud Manufacturing Platformevolves ™  ++ $350B+ $20B+  parts production design & manufacturing cloud-enabled   (in FR current tech scope(1)) software(2) innovation  Manufacturing and fulfillment Tools designers, engineers, Just as cloud computing unlocked of custom parts. manufacturing and supply chain entirely new business models and Additive manufacturing, professionals use across the lifecycle innovation, so too does cloud CNC Machining, manufacturing Injection Molding + others  (1) Includes additive manufacturing, CNC machining, injection molding, sheet metal, and other techniques; excludes extremely high volume and large form factor manufacturing and assembly (2) Estimated market size in 2025  Source: 3rd party market study; “3D Printing Market Global Forecast to 2023” Markets and Markets (2017); “3D Printing and Additive Manufacturing Global State of the Industry” Wohlers Reports (2020); “Category Intelligence on Machining” Beroe (2020); “2020 Additive Manufacturing Market Summary Report” Smartech (2019); “Metal Stamping Market Analysis” Grand View Research (2020); “Global Metal Stamping Market 2020 –2027” Acumen Research(2020); “Injection Molded Plastics Analysis and Segment Forecasts To 2027” Grand View Research (2020);  “Global Manufacturing Scorecard” Brookings Institute (2018); “Global Engineering CAD Software Industry Market Research Report” Maia Research (2020); “3D CAD Software Market” Grand View Research (2021); “World Population Prospects” United Nations (2020); “Engineering by the Numbers” American Society for Engineering Education (2019); “Occupational Outlook Handbook” Bureau of Labor Statistics (2019) FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix C  Our addressable market today is $350B+… with upside as the  Cloud Manufacturing Platform ™   evolves  Market opportunity, $B    Production addressable market  $10,193B 2025 Worldwide manufacturing market +   Primary processes:  Potential Software and Services market  ▪ Additive manufacturing  ▪ CNC machining: prototyping to medium volume runs (<100k parts)  Upside: New Business Models enabled by ▪ Injection molding: prototyping to medium   Cloud Manufacturing volume runs (<100k parts)  ▪ Sheet metal: prototyping to small volume $484B runs (<10k parts)  2025 expected production Total   Addressable Market (TAM) + 2025 potential software and services   market Software addressable market  Engineers, industrial designers, manufacturing $368B 2020 production TAM(1) and supply chain professionals using design/manufacturing software  (1) Includes additive manufacturing, CNC machining, injection molding, sheet metal, and other techniques; excludes extremely high volume and large form factor manufacturing and assembly   Source: 3rd party market study; “3D Printing Market Global Forecast to 2023” Markets and Markets (2017); “3D Printing and Additive Manufacturing Global State of the Industry” Wohlers Reports (2020); “Category Intelligence on Machining” Beroe (2020); “2020 Additive Manufacturing Market Summary Report” Smartech (2019); “Metal Stamping Market Analysis” Grand View Research (2020); “Global Metal Stamping Market 2020 –2027” Acumen Research(2020); “Injection Molded Plastics Analysis and Segment Forecasts To 2027” Grand View Research (2020);  “Global Manufacturing Scorecard” Brookings Institute (2018); “Global Engineering CAD Software Industry Market Research Report” Maia Research (2020); “3D CAD Software Market” Grand View Research (2021); “World Population Prospects” United Nations (2020); “Engineering by the Numbers” American Society for Engineering Education (2019); “Occupational Outlook Handbook” Bureau of Labor Statistics (2019) FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix C  Summary pro forma Income Statement  $ millions 2019A(1) 2020A(1) 2021E 2022E 2023E 2024E 2025E  Revenue 8 14 25 103 246 426 635  YoY growth % 191% 66% 76% 320% 139% 73% 49%  Costof Goods Sold 8 12 19 73 140 223 319 Gross Profit $0.2 $2 $5 $30 $106 $203 $316  Gross Margin % 2% 14% 21% 29% 43% 48% 50%  Operating Expenses 19 23 41 83 106 156 181 EBITDA ($18) ($21) ($36) ($52) $0.3 $47 $135  % EBITDA margin N/A N/A N/A N/A 0.1% 11% 21% FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix C  Reconciliation of non-GAAP financials  $ millions 2019A(1) 2020A(1) 2021E 2022E 2023E 2024E 2025E  Net income (loss) (18) (22) (38) (64) (20) 15 94 (+)Tax expenses - - - - - - -(+) Depreciation & amortization 0.3 0.4 2 11 21 32 41 EBITDA ($18) ($21) ($36) ($52) $0.3 $47 $135 (-)Cash flow from investing activities (1) (1) (11) (80) (48) (71) (46) Free cash flow ($19) ($22) ($47) ($133) ($47) ($24) $89     07Team FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Appendix C  O U R P U R P O S E :  Make New Things PossibleTM  O U R V I S I O N :  To build a new infrastructure to design, make, and move things in the digital age  O U R P R O D U C T :  First-of-its-kind Cloud   Manufacturing PlatformTM FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved.

 

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Risk Factors Risks Related to Fast Radius’ Business • Fast Radius is an early-stage company with a history of losses. Fast Radius has not been profitable historically and may not be able to achieve profitability for any period in the future or sustain cash flow from operating activities.   • Fast Radius has a relatively limited operating history and has experienced rapid growth, which makes evaluating its current business and future prospects difficult.   • Fast Radius may not timely and effectively scale and adapt its existing technology, processes and infrastructure to meet the needs of its business.  • Fast Radius’ operating results may fluctuate significantly from period-to-period and may fall below expectations in any particular period.   • Fast Radius faces intense and growing competition in the advanced manufacturing industry. Fast Radius’ inability to compete effectively with its competitors could affect its ability to achieve its anticipated market penetration and achieve or sustain profitability.   • Increased consolidation among Fast Radius’ customers, suppliers and competitors in the advanced manufacturing industry may have an adverse effect on Fast Radius’ business and results of operations.   • The advanced manufacturing industry in which Fast Radius operates is characterized by rapid technological change, requiring continual innovation and development of new solutions and innovations to meet constantly evolving customer demands.  • Forecasts of Fast Radius’ market and market growth may prove to be inaccurate and, even if the markets in which Fast Radius competes achieve the forecasted growth, there can be no assurance that its business will grow at similar rates, or at all.  • If demand for Fast Radius’ solutions does not grow as expected, or if market adoption of advanced manufacturing does not continue to develop, or develops more slowly than expected, Fast Radius’ revenues may stagnate or decline, and its business may be adversely affected.   • Declines in the prices of Fast Radius’ solutions, or in Fast Radius’ volume of sales, together with the company’s relatively inflexible cost structure, may adversely affect Fast Radius’ financial results.   • Fast Radius may experience significant delays in the design, production and launch of its advanced manufacturing solutions and enhancements to existing solutions, and Fast Radius may be unable to successfully commercialize solutions on its planned timelines.   • Changes in Fast Radius’ product mix may impact its gross margins and financial performance.   • Defects in new solutions or in enhancements to Fast Radius’ existing solutions that give rise to product returns or warranty or other claims could result in material expenses, diversion of management time and attention and damage to Fast Radius’ reputation.   • Fast Radius may be unable to consistently manufacture its products to the necessary specifications or in quantities necessarytomeet demand at an acceptable cost or at an acceptable performance level.   • Fast Radius expects to continue to experience rapid growth and organizational change. If Fast Radius fails to manage growth effectively, it may be unable to execute its business plan, maintain high levels of service and customer satisfaction or attract new employees and customers.   • Fast Radius is dependent on the continued services and performance of its senior management and other key employees, as well as on its ability to successfully hire, train, manage and retain qualified personnel.   • Fast Radius’ failure to maintain proper and effective internal controls over financial reporting and otherwise comply with Section 404 of the Sarbanes-Oxley Act or prevent or detect misstatements in its financial statements in the future could harm its business.  • As Fast Radius acquires and invest in companies or technologies, it may not realize expected business, technological or financial benefits and the acquisitions or investments could prove difficult to integrate, adversely affect its business, results of operations, and financial condition. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Risk Factors  • Fast Radius relies on its software and information technology systems to manage numerous aspects of its business, including its cloud manufacturing platform, and a disruption of these systems could adversely affect its business.   • A real or perceived defect, security vulnerability, error or performance failure in Fast Radius’ software or technical problems or disruptions caused by third-party service providers could cause Fast Radius to lose revenue, damage Fast Radius’ reputation and expose Fast Radius to liability.   • Fast Radius may not be able to adequately protect its proprietary and intellectual property rights in its data or technology.  • If third parties claim that Fast Radius infringes upon or otherwise violates their intellectual property rights, Fast Radius’ business could be adversely affected.   • Fast Radius may require additional funding for its growth plans and may not be able to obtain any additional financing on terms that are acceptable to Fast Radius, or at all. If Fast Radius fails to obtain additional financing on terms that are acceptable, Fast Radius will not be able to implement such plans fully if at all.   • Fast Radius’ ability to obtain additional funding in the future, if and as needed, through loans or equity issuances, or otherwise meet its current obligations to third parties, could be adversely affected if the economic environment continues to be difficult.   • Fast Radius’ indebtedness could adversely affect its financial condition, its ability to raise additional capital to fund operations, its ability to operate its business, its ability to react to changes in the economy or its industry and its ability to pay debts and could divert its cash flow from operations for debt payments.  • Changes in U.S. tax law may materially adversely affect Fast Radius’ financial condition, results of operations and cash flows.  • Fast Radius’ independent auditor has expressed substantial doubt about its ability to continue as a going concern.  Risks Related to Becoming a Public Company  • The combined company will be an emerging growth company and a smaller reporting company, and the reduced disclosure requirementsapplicable to emerging growth companies and smaller reporting companies may make our common stock less attractive to investors.  • If securities or industry analysts do not publish research or reports or publish unfavorable research or reports about our business, our stock price and trading volume could decline.  • If we fail to maintain proper and effective internal control over financial reporting, our ability to produce accurate and timely financial statements could be impaired, investors may lose confidence in our financial reporting and the trading price of our common stock may decline.  • Provisions in our proposed charter documents and under Delaware law could discourage a takeover that stockholders may consider favorable and may lead to entrenchment of management.  • Our proposed certificate of incorporation will provide that the Court of Chancery of the State of Delaware will be the exclusiveforum for substantially all disputes between us and our stockholders and that the federal district courts shall be the exclusive forum for the resolution of any complaint asserting a cause of action arisingunder the U.S. Securities Act of 1933, as amended, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution

 

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Risk Factors  Risks Related to the Transaction  • Each of ENNV and Fast Radius will incur significant transaction costs in connection with the Transaction.  • The consummation of the Transaction is subject to a number of conditions and if those conditions are not satisfied or waived,the merger agreement may be terminated in accordance with its terms and the Transaction may not be completed.  • The ability to successfully effect the Transaction and the combined company’s ability to successfully operate the business thereafter will be largely dependent upon the efforts of certain key personnel of   Fast Radius. The loss of such key personnel could negatively impact the operations and financial results of the combined business.  • There is no assurance that a stockholder’s decision whether to redeem its shares for a pro rata portion of ENNV’s trust account will put the stockholder in a better future economic position.  • If the Transaction’s benefits do not meet the expectations of investors or securities analysts, the market price of ENNV’s securities or, following the consummation of the Transaction, the combined company’s securities, may decline.  • A market for the combined company’s securities may not develop, which would adversely affect the liquidity and price of such securities.  • There can be no assurance that the combined company’s securities will be approved for listing on the Nasdaq Capital Market (“Nasdaq”) or that the combined company will be able to comply with the continued listing standards of Nasdaq.  • Directors of ENNV have potential conflicts of interest in recommending that ENNV’s stockholders vote in favor of the adoption of the Transaction.  • ENNV may redeem unexpired warrants prior to their exercise at a time that is disadvantageous to the holders of ENNV warrants, thereby making such warrants worthless.  • Further, even if the Transaction is completed, there can be no assurance that ENNV’s warrants will be in the money during their exercise period, and they may expire worthless.  • If ENNV seeks stockholder approval of the Transaction, its sponsor, directors, officers, advisors and their affiliates may electto purchase shares or warrants from public stockholders, which may influence a vote on the Transaction and reduce the public “float” of ENNV’s Class A common stock or warrants.  • If ENNV seeks stockholder approval of the Transaction, its sponsor, officers and directors have agreed to vote in favor of such Transaction, regardless of how its public stockholders vote.  • The ability of ENNV’s public stockholders to exercise redemption rights with respect to a large number of its shares could increase the probabilitythat the Transaction would be unsuccessful.  • ENNV is not required to obtain an opinion from an independent investment banking firm or from an independent accounting firm, and consequently, its stockholders may have no assurance from an independent source that the price it is paying for the business is fair to ENNV from a financial point of view.  • Legal proceedings in connection with the Transaction, the outcomes of which are uncertain, could delay or prevent the completionof the Transaction.  • The Transaction or combined company may be materially adversely affected by the recent COVID-19 outbreak.  • Changes in laws or regulations, or a failure to comply with any laws and regulations, may adversely affect ENNV’s and the combined company’s business, including ENNV’s and the combined company’s ability to consummate the Transaction, and results of operations. FAST RADIUS_® © 2020 Fast Radius Inc. All rights reserved. Confidential – Not for Distribution