Form 8-K Pine Technology Acquisit For: Dec 07

Exhibit 2.1

 

 

 

 

AGREEMENT AND PLAN OF MERGER

 

by and among

 

The Tomorrow Companies Inc.,

 

Pine Technology Acquisition Corp.,

 

and

 

PINE TECHNOLOGY MERGER CORP.

 

Dated as of December 7, 2021

 

 

 

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE I DEFINITIONS		5
1.1	Definitions	5
1.2	Construction	16
ARTICLE II MERGER		17
2.1	Merger	17
2.2	Merger Effective Time	17
2.3	Effect of the Merger	17
2.4	U.S. Tax Treatment	18
2.5	Certificate of Incorporation and Bylaws	18
2.6	Closing; Effective Time	18
2.7	Post-Closing Board of Directors and Officers	18
2.8	Taking of Necessary Action; Further Action	18
2.9	No Further Ownership Rights in Company Securities	19
2.10	Appraisal Rights	19
ARTICLE III CONSIDERATION		19
3.1	Conversion of Company Securities	19
3.2	No Fractional Shares	20
3.3	Withholding	20
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY		21
4.1	Corporate Existence and Power	21
4.2	Authorization	21
4.3	Governmental Authorization	21
4.4	Non-Contravention	22
4.5	Capitalization	22
4.6	Corporate Records	23
4.7	Subsidiaries	23
4.8	Consents	23
4.9	Financial Statements	24
4.10	Books and Records	24
4.11	Internal Accounting Controls	24
4.12	Absence of Certain Changes	24
4.13	Properties; Title to the Company’s Assets	25
4.14	Litigation	25
4.15	Contracts	25

 

 

TABLE OF CONTENTS

(cont’d)

 

4.16	Licenses and Permits	27
4.17	Compliance with Laws	27
4.18	Intellectual Property	27
4.19	Data Privacy	29
4.20	Employees; Employment Matters	29
4.21	Withholding	30
4.22	Employee Benefits	30
4.23	Real Property	32
4.24	Tax Matters	32
4.25	Environmental Laws	34
4.26	Finders’ Fees	34
4.27	Directors and Officers	34
4.28	Anti-Money Laundering Laws	34
4.29	Insurance	34
4.30	Related Party Transactions	34
4.31	Customers and Suppliers	35
4.32	Government Contracts	35
4.33	Absence of Certain Business Practices	35
4.34	Specified Company Securityholders	36
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB		36
5.1	Corporate Existence and Power	36
5.2	Corporate Authorization	36
5.3	Governmental Authorization	36
5.4	Non-Contravention	36
5.5	Finders’ Fees	37
5.6	Issuance of Shares	37
5.7	Capitalization	37
5.8	Information Supplied	38
5.9	Trust Fund	38
5.10	Listing	38
5.11	Board Approval	38
5.12	Parent SEC Documents and Financial Statements	39
5.13	Business Activities	40
5.14	Absence of Certain Business Practices	40
5.15	Affiliate Transactions	41
5.16	Litigation	41
5.17	Expenses, Indebtedness and Other Liabilities	41
5.18	Tax Matters	41
5.19	Investment Company Act; JOBS Act	43
ARTICLE VI COVENANTS OF THE PARTIES PENDING CLOSING		43
6.1	Conduct of the Business	43
6.2	Exclusivity	44
6.3	Access to Information	45
6.4	Notices of Certain Events	45
6.5	Cooperation with Form S-4/Proxy Statement; Other Filings	46
6.6	Trust Account	48
6.7	Obligations of Merger Sub	48
6.8	Private Placement	48
6.9	Termination of Affiliate Transactions	48
6.10	CFIUS Filing	48

 

 

TABLE OF CONTENTS

(cont’d)

 

ARTICLE VII COVENANTS OF THE COMPANY		49
7.1	Reporting; Compliance with Laws	49
7.2	Commercially Reasonable Efforts to Obtain Consents	49
7.3	Company’s Stockholders Approval	49
ARTICLE VIII COVENANTS OF ALL PARTIES HERETO		50
8.1	Commercially Reasonable Efforts; Further Assurances; Governmental Consents	50
8.2	Confidentiality	50
8.3	Directors’ and Officers’ Indemnification and Liability Insurance	51
8.4	Nasdaq Listing	51
8.5	Certain Tax Matters	51
8.6	Equity Incentive Plan	52
8.7	Closing Parent RSU Grant	52
8.8	Transaction Litigation	52
8.9	Amendment to Parent Bylaws.	53
ARTICLE IX CONDITIONS TO CLOSING		53
9.1	Condition to the Obligations of the Parties	53
9.2	Conditions to Obligations of Parent and Merger Sub	53
9.3	Conditions to Obligations of the Company	54
ARTICLE X TERMINATION		55
10.1	Termination Without Default	55
10.2	Termination Upon Default	55
10.3	Effect of Termination	55
ARTICLE XI MISCELLANEOUS		56
11.1	Non-Survival of Representations, Warranties and Covenants	56
11.2	Notices	56
11.3	Amendments; No Waivers; Remedies	57
11.4	Arm’s Length Bargaining; No Presumption Against Drafter	57
11.5	Publicity	57
11.6	Expenses	57
11.7	No Assignment or Delegation	57
11.8	Governing Law	57
11.9	Counterparts; Facsimile Signatures	57
11.10	Entire Agreement	57
11.11	Severability	57
11.12	Further Assurances	57
11.13	Third Party Beneficiaries	58
11.14	Waiver	58
11.15	Jurisdiction; Waiver of Jury Trial	58
11.16	Enforcement	58
11.17	Non-Recourse	58
11.18	No Other Representations; No Reliance	59

 

 

AGREEMENT AND PLAN OF MERGER

 

AGREEMENT AND PLAN OF MERGER, dated as of December 7, 2021 (this “Agreement”), is entered into by and among The Tomorrow Companies Inc., a Delaware corporation (the “Company”), Pine Technology Acquisition Corp., a Delaware corporation (“Parent”), and Pine Technology Merger Corp., a Delaware corporation (“Merger Sub”).

 

W I T N E S S E T H:

 

A. The Company is in the business of weather forecasting and related activities (the “Business”);

 

B. Parent is a blank check company 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, and Merger Sub is a wholly-owned subsidiary of Parent;

 

C. The Company Securityholders are listed on the Capitalization Schedule and Annex 4.5(a) to Schedule 4.5 and own 100% of the issued and outstanding Company Securities;

 

D. Merger Sub will merge with and into the Company (the “Merger”), after which the Company will be the surviving company (the “Surviving Corporation”), and a wholly-owned subsidiary of Parent and Parent shall change its name to “The Tomorrow Companies Inc.”;

 

E. Contemporaneously with the execution of, and as a condition and an inducement to Parent and the Company entering into this Agreement, Company Securityholders set forth on Schedule 1 (“Specified Company Securityholders”) are entering into and delivering support agreements, substantially in the form attached hereto as Exhibit A (each, a “Company Support Agreement”), pursuant to which each of the Specified Company Securityholders has agreed to vote in favor of this Agreement and the Merger;

 

F. Contemporaneously with the execution of, and as a condition and an inducement to Parent and the Company entering into this Agreement, the Sponsor and the Specified Company Securityholders are entering into and delivering lockup agreements, substantially in the form attached hereto as Exhibit D (each, a “Lockup Agreement”), pursuant to which Sponsor and each of the Specified Company Securityholders has agreed with Parent to certain restrictions on the transfer of its shares of Parent Class A Shares;

 

G.  Contemporaneously with the execution of, and as a condition and an inducement to Parent and the Company entering into this Agreement, certain investors (the “PIPE Investors”) have entered into subscription agreements in substantially the form attached hereto as Exhibit B (collectively, the “Subscription Agreements”), pursuant to which, at the Closing, such Persons have agreed, subject to the terms and conditions set forth therein, to subscribe for and purchase shares of Parent Class A Shares at a purchase price of $10.00 per share, for an aggregate cash amount of $75,000,000 (the “PIPE Investment Amount” and such transactions, the “Private Placement”);

 

H. Contemporaneously with the execution of, and as a condition and an inducement to Parent and the Company entering into this Agreement, specified stockholders of Parent are entering into and delivering the Parent Support Agreement, substantially in the form attached hereto as Exhibit C (the “Parent Support Agreement”), pursuant to which each such Parent Stockholder has agreed (x) not to transfer or redeem any shares of Parent Common Stock held by such Parent Stockholder and (y) to vote in favor of this Agreement and the Merger at the Parent Stockholder Meeting; and

 

I. The Company’s Board of Directors has unanimously (i) approved and declared advisable this Agreement and the transactions contemplated by this Agreement and the Additional Agreements to which the Company is or will be party, including the Merger, on the terms and subject to the conditions set forth herein, (ii) determined that this Agreement and such transactions are fair to, and in the best interests of, the Company and the Company Stockholders and (iii) resolved to recommend that the Company Stockholders approve the Merger and such other transactions and adopt this Agreement and the Additional Agreements to which the Company is or will be a party (the “Company Board Recommendation”).

 

 

In consideration of the mutual covenants and promises set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

1.1  Definitions.

 

“A&R Charter Proposal” has the meaning set forth in Section 6.5(e).

 

“Action” means any legal action, litigation, suit, claim, hearing or proceeding, including any audit, claim or assessment for Taxes or otherwise, by or before any Authority.

 

“Additional Agreements” means the Registration Rights Agreement, the Company Support Agreements, the Subscription Agreements, the Parent Support Agreements, and the Lockup Agreements.

 

“Additional Parent SEC Documents” has the meaning set forth in Section 5.12(a).

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by or under common Control with such Person. “Affiliate” shall also include, with respect to any individual natural Person, (a) such Person’s spouse, Parent, lineal descendant, sibling, aunt, uncle, niece, nephew, mother-in-law, father-in-law, sister-in-law, or brother-in-law or (b) a trust for the benefit of such Person and/or the individuals described in the foregoing clause (a) or of which such Person is a trustee.

 

“Affiliate Transaction” has the meaning set forth in Section 4.30.

 

“Aggregate Transaction Proceeds” means an amount equal to, without duplication, (a) the sum of (i) the aggregate cash proceeds available for release to Parent from the Trust Fund in connection with the transactions contemplated hereby (net of the Parent Redemption Amount); plus (ii) the aggregate cash proceeds committed to be funded to Parent on the Closing Date in respect of the Private Placement; plus (iii) Parent’s cash balance as of the Closing Date, minus (b) the Unpaid Expenses.

 

“Agreement” has the meaning set forth in the preamble.

 

“Alternative Proposal” has the meaning set forth in Section 6.2(b).

 

“Alternative Transaction” has the meaning set forth in Section 6.2(a).

 

“Annual Financial Statements” has the meaning set forth in Section 4.9(a).

 

“Authority” means any governmental, regulatory or administrative body, agency or authority, any court or judicial authority, any arbitrator, or any public, private or industry regulatory authority, whether international, national, foreign, Federal, state, or local.

 

“Balance Sheet Date” has the meaning set forth in Section 4.9(a).

 

“Books and Records” means all books and records, ledgers, employee records, customer lists, files, correspondence, and other records of every kind (whether written, electronic, or otherwise embodied) owned or controlled by a Person in which a Person’s assets, the business or its transactions are otherwise reflected, other than stock books and minute books.

 

 

“Business” has the meaning set forth in the recitals to this Agreement.

 

“Business Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized to close for business.

 

“Capitalization Schedule” means Schedule 3.1(h), as updated as contemplated herein.

 

“Certificate of Merger” has the meaning set forth in Section 2.2.

 

“CFIUS” means the Committee on Foreign Investment in the United States, or any member agency thereof acting in its capacity as a member agency.

 

“CFIUS Approval” means (i) the CFIUS Parties have received written notice from CFIUS that CFIUS has determined that the transaction contemplated by this Agreement is not a “covered transaction” and is not subject to review under the DPA, (ii) the CFIUS Parties have received a written notice issued by CFIUS that it has concluded an assessment, review or investigation of the CFIUS Declaration or CFIUS Notice provided pursuant to the DPA with respect to the transaction contemplated by this Agreement, determined that there are no unresolved national security concerns, and has therefore terminated all action under the DPA, (iii) if CFIUS has sent a report (the “CFIUS Report”) to the President of the United States (“POTUS”) requesting POTUS’s decision, then POTUS has (A) announced a decision not to take any action to suspend or prohibit the transaction contemplated by this Agreement or (B) not taken any action to suspend or prohibit the transaction contemplated by this Agreement after 15 days from the date of receipt of the CFIUS Report, or (iv) if the CFIUS Parties submitted a CFIUS Declaration, they have received a written notice from CFIUS that it has determined, pursuant to 31 C.F.R. § 800.407(a)(2), that it is not able to conclude action pursuant to the declaration but has not requested the submission of a CFIUS Notice.

 

“CFIUS Declaration” means a declaration filing with respect to the transaction contemplated by this Agreement submitted to CFIUS by the CFIUS Parties pursuant to 31 C.F.R. Part 800 Subpart D.

 

“CFIUS Notice” means a notice filing with respect to the transaction contemplated by this Agreement submitted to CFIUS pursuant to 31 C.F.R. Part 800 Subpart E.

 

“CFIUS Parties” means Parent, the Company, and any Person that is a party to a CFIUS Declaration or a CFIUS Notice.

 

“Claim” has the meaning set forth in Section 11.14.

 

“Closing” has the meaning set forth in Section 2.6.

 

“Closing Date” has the meaning set forth in Section 2.6.

 

“Closing Payment Shares” means an aggregate number of Parent Class A Shares equal to 70,000,000 Parent Class A Shares.

 

“COBRA” means collectively, the requirements of Sections 601 through 606 of ERISA and Section 4980B of the Code.

 

“Code” means the Internal Revenue Code of 1986, as amended.

 

 

“Company” has the meaning set forth in the Preamble.

 

“Company Capital Stock” means Company Common Stock, Company Series Seed Preferred Stock, Company Series A Preferred Stock, Company Series A-1 Preferred Stock, Company Series B Preferred Stock, Company Series B-1 Preferred Stock, Company Series C Preferred Stock, Company Series D Preferred Stock and Company Series X Preferred Stock (if any).

 

“Company Certificate” has the meaning set forth in Section 9.2(c).

 

“Company Certificate of Incorporation” means the Seventh Amended and Restated Certificate of Incorporation of the Company, as filed on March 15, 2021 with the Secretary of State of the State of Delaware pursuant to the DGCL, as amended.

 

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

 

“Company Consent” has the meaning set forth in Section 4.8.

 

“Company Expenses” means, as of any determination time, the aggregate of all fees, expenses, commissions or other amounts incurred by or on behalf of, or otherwise payable by, whether or not due, the Company and its Subsidiaries in connection with the negotiation, preparation or execution of this Agreement or any Additional Agreements, the performance of any covenants or agreements in this Agreement or any Additional Agreement or the consummation of the transactions contemplated hereby or thereby, including (i) fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, compensation consultants, analysts, legal, accounting, tax, public relations and investor relations advisors, transfer or exchange agents, as applicable, and other professional fees, (ii) costs and expenses related to (x) directors’ and officers’ liability insurance or (y) the preparation, filing and distribution of the SEC Statement and Additional Parent SEC Documents, or (iii) filing fees paid or payable by or on behalf of the Company or its Subsidiaries to any Authority in connection with the transactions contemplated hereby but, in all cases, excluding fees (other than legal fees of the Company’s counsel), costs, expenses, brokerage fees, commissions, finders’ fees and disbursements relating to the issuance and sale of shares of Company Series X Preferred Stock.

 

“Company Financial Statements” has the meaning set forth in Section 4.9(a).

 

“Company Fundamental Representations” means the representations and warranties made pursuant to Section 4.1 (Corporate Existence and Power), Section 4.2 (Authorization), Section 4.5(a) and (c) (Capitalization), Section 4.7 (Subsidiaries) and Section 4.26 (Finders’ Fees).

 

“Company Intellectual Property” means all Intellectual Property owned or purported to be owned by the Company or any Subsidiary of the Company, including without limitation Company Patents, Company Marks, and Company Copyrights.

 

“Company IT Systems” means all Software, databases, compilations, hardware, microprocessors, networks, firmware and other information technology and communications systems used in connection with the operations of the Business as presently conducted.

 

“Company Option” means each option to purchase Company Common Stock granted, and that remains outstanding, including options issued under the Equity Incentive Plan.

 

“Company Preferred Stock” has the meaning set forth in Section 4.5(a).

 

 

“Company Product” means all software products and services marketed, licensed, sold, distributed or otherwise made commercially available by or on behalf of the Company or any Subsidiary of the Company.

 

“Company Restricted Stock” means any outstanding shares of Company Capital Stock that are unvested or subject to a risk of forfeiture or repurchase option in favor of the Company.

 

“Company Securities” means the Company Common Stock, the Company Preferred Stock, the Company Options and the Company Warrants.

 

“Company Securityholder” means each Person who holds Company Securities immediately prior to the Effective Time.

 

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

 

“Company Series A-1 Preferred Stock” means the series A-1 preferred stock of the Company, par value $0.0001 per share.

 

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

 

“Company Series B-1 Preferred Stock” means the series B-1 preferred stock of the Company, par value $0.0001 per share.

 

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

 

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

 

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

 

“Company Series X Preferred Stock” means any series of preferred stock of the Company, par value $0.0001 per share, authorized after the date hereof; provided, that if such series of preferred stock of the Company is sold at a fixed pre-money valuation other than $700,000,000, then any such transaction or series of transactions with respect to the sale by the Company of the Company Series X Preferred Stock after the date hereof and prior to the Closing shall be subject to the mutual agreement of the Company and Parent.

 

“Company Stockholder Approval” has the meaning set forth in Section 4.2(b).

 

“Company Stockholders” means, at any given time, the holders of Company Capital Stock.

 

“Company Stockholder Written Consent” has the meaning set forth in Section 7.3(a).

 

“Company Stockholder Written Consent Deadline” has the meaning set forth in Section 7.3(a).

 

“Company Support Agreement” has the meaning set forth in the recitals to this Agreement.

 

“Company Warrant” means the warrants to purchase Company Series D Preferred Stock outstanding immediately prior to the Effective Time.

 

 

“Consideration Shares” has the meaning set forth in Section 3.1(a).

 

“Contracts” means the Leases and all other contracts, agreements, leases (including equipment leases, car leases and capital leases), licenses, Permits, commitments, client contracts, statements of work (SOWs), sales and purchase orders and similar instruments, oral or written, to which the Company is a party or by which any of its respective assets is bound.

 

“Control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise. “Controlled”, “Controlling” and “under common Control with” have correlative meanings. Without limiting the foregoing, a Person (the “Controlled Person”) shall be deemed Controlled by any other Person (the “50% Owner”) (i) owning beneficially, as meant in Rule 13d-3 under the Exchange Act, securities entitling such Person to cast 50% or more of the votes for election of directors or equivalent governing authority of the Controlled Person or (ii) entitled to be allocated or receive 50% or more of the profits, losses, or distributions of the Controlled Person.

 

“Conversion Ratio” means a number of Parent Class A Shares equal to the quotient obtained by dividing (a) the Closing Payment Shares by (b) the Fully Diluted Company Shares.

 

“Converted Company Option” has the meaning set forth in Section 3.1(b).

 

“Data Protection Laws” means all Laws applicable to the Company and its Subsidiaries in connection with the Business and relating to the processing, privacy or security of Personal Information and all regulations or guidance issued thereunder.

 

“DGCL” has the meaning set forth in Section 2.1.

 

“DPA” means Section 721 of Title VII of the Defense Production Act of 1950, as amended and as may be amended from time to time, including the regulations promulgated thereunder, codified at 31 C.F.R. Part 800, et seq.

 

“Effective Date” has the meaning set forth in Section 6.5(c).

 

“Effective Time” has the meaning set forth in Section 2.2.

 

“Election of Directors Proposal” has the meaning set forth in Section 6.5(e).

 

“Enforceability Exceptions” has the meaning set forth in Section 4.2(a).

 

“Environmental Laws” means all Laws that prohibit, regulate or control any Hazardous Material or any Hazardous Material Activity, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, the Resource Recovery and Conservation Act of 1976, the Federal Water Pollution Control Act, the Clean Air Act, the Hazardous Materials Transportation Act and the Clean Water Act.

 

“Equity Incentive Plan” means the Company’s 2016 Stock Incentive Plan.

 

“Equity Interest” means, with respect to any Person, any capital stock of, or other ownership, membership, partnership, voting, joint venture, equity interest, preemptive right, stock appreciation, phantom stock, profit participation or similar rights in, such Person or any Indebtedness, securities, options, warrants, call, subscription or other rights or entitlements of, or granted by, such Person that are convertible into, or are exercisable or exchangeable for, or give any person any right or entitlement to acquire any such capital stock or other ownership, partnership, voting, joint venture, equity interest, preemptive right, stock appreciation, phantom stock, profit participation or similar rights, in all cases, whether vested or unvested, of such Person or any similar security or right that is derivative or provides any economic benefit based, directly or indirectly, on the value or price of any such capital stock or other ownership, partnership, voting, joint venture, equity interest, preemptive right, stock appreciation, phantom stock, profit participation or similar rights, in all cases, whether vested or unvested.

 

 

“Equity Plan Proposal” has the meaning set forth in Section 6.5(e).

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

“ERISA Affiliate” means each entity, trade or business that is, or was at the relevant time, a member of a group described in Section 414(b), (c), (m) or (o) of the Code that includes or included the Company.

 

“ESPP Proposal” has the meaning set forth in Section 6.5(e).

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Foreign Corrupt Practices Act” means the Foreign Corrupt Practices Act of 1977, as amended.

 

“Foreign Plan” means each Plan maintained outside the jurisdiction of the United States that provides benefits in respect of any current or former employee, officer, director, independent contractor or otherwise of the Company or any of its Subsidiaries that is primarily based outside the United States, including any such plan required to be maintained or contributed to by applicable Law, custom or rule of the relevant jurisdiction.

 

“Fully Diluted Company Shares” means the sum, without duplication, of (a) shares of Company Common Stock (including Company Restricted Stock) that are issued and outstanding immediately prior to the Effective Time; plus (b) shares of Company Preferred Stock (on an as converted to Company Common Stock basis) that are issued and outstanding immediately prior to the Effective Time; plus (c) the aggregate number of shares of Company Series D Preferred Stock (on an as converted to Company Common Stock basis) issuable upon exercise of the Company Warrants as of immediately prior to the Effective Time; plus (d) the aggregate number of shares of Company Common Stock issuable upon exercise of Company Options as of immediately prior to the Effective Time.

 

“Hazardous Material” means any material, emission, chemical, substance or waste that has been designated by any Authority to be radioactive, toxic, hazardous, a pollutant or a contaminant.

 

“Hazardous Material Activity” means the transportation, transfer, recycling, storage, use, treatment, manufacture, removal, remediation, release, exposure of others to, sale, labeling, or distribution of any Hazardous Material or any product or waste containing a Hazardous Material, or product manufactured with ozone depleting substances, including any required labeling, payment of waste fees or charges (including so-called e-waste fees) and compliance with any recycling, product take-back or product content requirements.

 

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

 

“IPO” means the initial public offering of Parent pursuant to a prospectus dated March 10, 2021.

 

“Indebtedness” means with respect to any Person, (a) all obligations of such Person for borrowed money, or with respect to deposits or advances of any kind (including amounts by reason of overdrafts and amounts owed by reason of letter of credit reimbursement agreements), including with respect thereto, all interests, fees and costs, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person, (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services (other than accounts payable to creditors for goods and services incurred in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien or security interest on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (f) all obligations of such Person under leases required to be accounted for as capital leases under U.S. GAAP, (g) all guarantees by such Person, (h) all liability of such Person with respect to any hedging obligations, including interest rate or currency exchange swaps, collars, caps or similar hedging obligations, (i) any unfunded or underfunded liabilities pursuant to any pension or nonqualified deferred compensation plan or arrangement and (j) any agreement to incur any of the same.

 

 

“Intellectual Property” means any and all of the following, as they exist in any jurisdiction throughout the world and under any international treaties or conventions: (a) patents, patent applications of any kind and patent rights (collectively, “Patents”); (b) registered and unregistered trademarks, service marks, trade names, trade dress, corporate names, logos, packaging design, slogans and Internet domain names, rights to social media accounts, and other indicia of source, origin or quality, together with all goodwill associated with any of the foregoing, and registrations and applications for registration of any of the foregoing (collectively, “Marks”); (c) copyrights in both published and unpublished works (including without limitation all compilations, databases and computer programs, manuals and other documentation and all derivatives, translations, adaptations and combinations of the above), mask work rights and registrations and applications for registration of any of the foregoing (collectively, “Copyrights”); (d) rights under applicable trade secret Law; (e) rights under data; and (f) any and all other intellectual property rights and/or proprietary rights recognized by Law.

 

“Interim Balance Sheet” has the meaning set forth in Section 4.9(a).

 

“Knowledge of the Company” or “to the Company’s Knowledge” or similar terms (whether or not capitalized) means the actual knowledge of Shimon Elkabetz, Itai Zlotnik and Rei Goffer.

 

“Knowledge of Parent” or “to Parent’s Knowledge” or similar terms (whether or not capitalized) means the actual knowledge of Adam Karkowsky, Christopher Longo and Ciro M. DeFalco.

 

“Law” means any domestic or foreign, federal, state, municipality or local law, statute, ordinance, code, rule, or regulation.

 

“Leases” means the leases described on Schedule 1.1(c), together with all fixtures and improvements erected on the premises leased thereby.

 

“Lien” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such property or asset, and any conditional sale or voting agreement or proxy, including any agreement to give any of the foregoing.

 

“Lockup Agreements” has the meaning set forth in the recitals to this Agreement.

 

“Material Adverse Effect” or “Material Adverse Change” means any event, occurrence, fact, condition or change that, individually or in the aggregate, (i) has or would reasonably be expected to result in a material adverse change or a material adverse effect upon the assets, liabilities, financial condition, business, operations or properties of the Company and the Business, taken as a whole, or (ii) does or would reasonably be expected to prevent, materially delay or materially impede the ability of the Company to consummate the Merger; provided, however, that with respect to clause (i) only, “Material Adverse Effect” or “Material Adverse Change” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (a) general economic or political conditions; (b) conditions generally affecting the industries in which the Company operates; (c) any changes in financial, banking or securities markets in general, including any disruption thereof and any decline in the price of any security or any market index or any change in prevailing interest rates; (d) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (e) any action expressly required by this Agreement or any action taken (or omitted to be taken) with the written consent of or at the written request of Parent; (f) any changes in applicable Laws or accounting rules (including U.S. GAAP) or the enforcement, implementation or interpretation thereof; (g) the announcement, pendency or completion of the transactions contemplated by this Agreement; (h) any natural or man-made disaster or acts of God or the COVID-19 pandemic; or (i) any failure by the Company to meet any internal or published projections, forecasts or revenue or earnings predictions; except, in the case of subclauses (a), (b), (c), (d), (f) and (h), to the extent such change, event, circumstance or effect has a disproportionate adverse effect on such entity as compared to other Persons engaged in the same industry.

 

 

“Material Contracts” has the meaning set forth in Section 4.15(a).

 

“Merger” has the meaning set forth in the recitals to this Agreement.

 

“Merger Sub” has the meaning set forth in the Preamble.

 

“Merger Sub Common Stock” has the meaning set forth in Section 5.7(b).

 

“Money Laundering Laws” has the meaning set forth in Section 4.28.

 

“Nasdaq” means The Nasdaq Capital Market.

 

“Nasdaq Proposal” has the meaning set forth in Section 6.5(e).

 

“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.

 

“Offer Documents” has the meaning set forth in Section 6.5(a).

 

“Open Source Software” means any software (in source or object code form) that is subject to (a) a license or other agreement commonly referred to as an open source, free software, copyleft or community source code license (including but not limited to any code or library licensed under the GNU Affero General Public License, GNU General Public License, GNU Lesser General Public License, BSD License, Apache Software License, or any other public source code license arrangement) or (b) any other license or other agreement that requires, as a condition of the use, modification or distribution of software subject to such license or agreement, that such software or other software linked with, called by, combined or distributed with such software be (i) disclosed, distributed, made available, offered, licensed or delivered in source code form, (ii) licensed for the purpose of making derivative works, (iii) licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind, or (iv) redistributable at no charge, including without limitation any license defined as an open source license by the Open Source Initiative as set forth on www.opensource.org.

 

“Material Customers” has the meaning set forth in Section 4.31(a).

 

“Material Suppliers” has the meaning set forth in Section 4.31(b).

 

“Order” means any decree, order, judgment, writ, award, injunction, rule or consent of or by an Authority.

 

“Other Filings” means any filings to be made by Parent required under the Exchange Act, Securities Act or any other United States federal, foreign or blue sky laws, other than the SEC Statement and the other Offer Documents.

 

“Outside Closing Date” has the meaning set forth in Section 10.1(a).

 

“Parent” has the meaning set forth in the Preamble.

 

“Parent Board Recommendation” has the meaning set forth in Section 5.11.

 

“Parent Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of Parent, as filed on May 17, 2021 with the Secretary of State of the State of Delaware pursuant to the DGCL.

 

“Parent Class A Shares” means the Class A common stock, $0.0001 par value, of Parent.

 

“Parent Class B Shares” means the Class B common stock, $0.0001 par value, of Parent.

 

“Parent Common Stock” means Parent Class A Shares and Parent Class B Shares.

 

“Parent Equity Incentive Plan” has the meaning set forth in Section 8.6.

 

 

“Parent Expenses” means, as of any determination time, the aggregate of all fees, expenses, commissions or other amounts incurred by or on behalf of, or otherwise payable by, whether or not due, Parent or Merger Sub in connection with the negotiation, preparation or execution of this Agreement or any Additional Agreements, the performance of any covenants or agreements in this Agreement or any Additional Agreement or the consummation of the transactions contemplated hereby or thereby, including (i) deferred underwriting commissions disclosed in any Parent SEC Documents, (ii) fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, legal, accounting, tax, public relations and investor relations advisors, the Trustee and transfer or exchange agent, as applicable, and other professional fees, (iii) costs and expenses related to (x) directors’ and officers’ liability insurance or (y) the preparation, filing and distribution of the SEC Statement and Additional Parent SEC Documents, (iv) amounts outstanding under any working capital loans between Parent and Sponsor or (v) filing fees paid or payable by or on behalf of Parent or Merger Sub to any Authority in connection with the transactions contemplated hereby.

 

“Parent Fundamental Representations” means the representations and warranties made pursuant to Section 5.1 (Corporate Existence and Power), Section 5.2 (Corporate Authorization), Section 5.5 (Finders’ Fees) and Section 5.7 (Capitalization).

 

“Parent Parties” has the meaning set forth in Article V.

 

“Parent Preferred Stock” has the meaning set forth in Section 5.7(a).

 

“Parent Proposals” has the meaning set forth in Section 6.5(e).

 

“Parent Redemption Amount” has the meaning set forth in Section 6.6.

 

“Parent RSU” means an award of restricted stock units under the Parent Equity Incentive Plan, with each restricted stock unit providing the holder thereof the opportunity to be issued one Parent Class A Share.

 

“Parent SEC Documents” has the meaning set forth in Section 5.12(a).

 

“Parent Stockholder Approval” has the meaning set forth in Section 5.2.

 

“Parent Stockholder Meeting” has the meaning set forth in Section 6.5(a).

 

“Parent Stockholders” means, at any given time, the holders of Parent Common Stock.

 

“Parent Support Agreement” has the meaning set forth in the recitals to this Agreement.

 

“Parent Units” means the outstanding units of Parent sold as part of Parent’s IPO.

 

“Permit” means each license, franchise, permit, order, approval, consent or other similar authorization required to be obtained and maintained by the Company under applicable Law to carry out or otherwise affecting, or relating in any way to, the Business.

 

“Permitted Liens” means (a) all defects, exceptions, restrictions, easements, rights of way and encumbrances disclosed in policies of title insurance which have been made available to Parent; (b) mechanics’, carriers’, workers’, repairers’ and similar statutory Liens arising or incurred in the ordinary course of business for amounts (i) that are not delinquent, (ii) that are not material to the business, operations and financial condition of the Company so encumbered, either individually or in the aggregate, and (iii) not resulting from a breach, default or violation by the Company or any of its Subsidiaries of any Contract or Law; (c) Liens for Taxes not yet due and payable or which are being contested in good faith by appropriate proceedings (and for which adequate accruals or reserves have been established on the Company Financial Statements in accordance with U.S. GAAP); (d) non-exclusive licenses of Intellectual Property; and (e) the Liens set forth on Schedule 1.1(a).

 

 

“Person” means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.

 

“Personal Information” means any data or information that are regulated by Data Protection Laws.

 

“Plan” means each “employee benefit plan” within the meaning of Section 3(3) of ERISA and all other compensation and benefits plans, policies, programs, or arrangements, including multiemployer plans within the meaning of Section 3(37) of ERISA, and each other equity, stock purchase, stock option, restricted stock, severance, retention, employment (other than any employment offer letter in such form as previously provided to Parent that is terminable “at will” without any contractual obligation on the part of the Company to make any severance, termination, change of control, or similar payment), consulting, change of control, collective bargaining, bonus, incentive, deferred compensation, employee loan, fringe benefit and other benefit plan, agreement, program, policy, commitment or other arrangement, whether or not subject to ERISA (including any related funding mechanism now in effect or required in the future), whether formal or informal, oral or written, in each case, that is sponsored, maintained, contributed or required to be contributed to by the Company or any of its Subsidiaries, or under which the Company or any of its Subsidiaries has any current or future liability (whether with respect to any current or former officer, employee, director, independent contractor or otherwise).

 

“Private Placement” has the meaning set forth in the recitals to this Agreement.

 

“Prospectus” has the meaning set forth in Section 11.14.

 

“Proxy Statement” has the meaning set forth in Section 6.5(a).

 

“Real Property” means, collectively, all real properties and interests therein (including the right to use), together with all buildings, fixtures, trade fixtures, plant and other improvements located thereon or attached thereto; all rights arising out of use thereof (including air, water, oil and mineral rights); and all subleases, franchises, licenses, permits, easements and rights-of-way which are appurtenant thereto.

 

“Registration Rights Agreement” means the registration rights agreement, in substantially the form attached hereto as Exhibit E.

 

“Representatives” has the meaning set forth in Section 6.2(a).

 

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

 

“SEC” means the Securities and Exchange Commission.

 

“SEC Statement” means the Form S-4, including the Proxy Statement, whether in preliminary or definitive form, and any amendments or supplements thereto.

 

“Securities Act” means the Securities Act of 1933, as amended.

 

“Series X Conversion Ratio” means a number of Parent Class A Shares equal to (a) the Series X Financing Amount, if any, divided by $10.00, divided by (b) the total number of shares of Company Series X Preferred Stock issued and outstanding immediately prior to the Effective Time.

 

“Series X Financing Amount” means the aggregate dollar value amount of all Company Series X Preferred Stock purchased after the date hereof; provided, that the maximum aggregate dollar value of the Series X Financing Amount shall not exceed $35,000,000.

 

“Software” means any and all computer programs, including operating system and applications software, implementations of algorithms, and program interfaces, whether in source code or object code form and all documentation, including user manuals relating to the foregoing.

 

 

“Specified Business Conduct Laws” means: (a) the Foreign Corrupt Practices Act and other applicable Law relating to bribery or corruption; (b) all applicable Law imposing economic or financial sanctions on any Person, including all applicable Law administered by OFAC or the Bureau of Industry and Security administered by the U.S. Department of Commerce, all sanctions laws or embargos imposed or administered by the U.S. Department of State, the United Nations Security Council, Her Majesty’s Treasury of the United Kingdom, the European Union and all anti-boycott or anti-embargo laws; (c) all applicable Law relating to the import, export, re-export, transfer of information, data, goods, software, and technology, including the Export Administration Regulations administered by the U.S. Department of Commerce and the International Traffic in Arms Regulations administered by the U.S. Department of State; and (d) the Money Laundering Control Act of 1986, as amended, the Currency and Foreign Transactions Reporting Act of 1970, as amended, The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, and other applicable Law relating to money laundering.

 

“Specified Company Securityholder” has the meaning set forth in the recitals to this Agreement.

 

“Sponsor” means Pine Technology Sponsor LLC, a Delaware limited liability company.

 

“Standard Contracts” has the meaning set forth in Section 4.15(a)(vi).

 

“Subscription Agreement” has the meaning set forth in the recitals to this Agreement.

 

“Subsidiary” means, with respect to any Person, any corporation, association, partnership, limited liability company, trust or other entity of which fifty percent (50%) or more of the total voting power, whether by way of Contract or otherwise, of shares of capital stock or other equity interests (including limited liability company or partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly (e.g., through another Subsidiary), by (a) such Person (b) such Person and one or more of its Subsidiaries, or (c) one or more Subsidiaries of such Person.

 

For the avoidance of doubt, a Subsidiary of a Person includes direct and indirect Subsidiaries (e.g., a Subsidiary of a Subsidiary).

 

“Surviving Corporation” has the meaning set forth in the recitals to this Agreement.

 

“Tangible Personal Property” means all tangible personal property and interests therein, including machinery, computers and accessories, furniture, office equipment, communications equipment, automobiles, laboratory equipment and other equipment owned or leased by the Company and other tangible property, including the items listed on Schedule 1.1(b).

 

“Tax(es)” means any U.S. federal, state or local or non-U.S. tax, charge, fee, levy, custom, duty, deficiency, or other assessment of any kind or nature imposed by any Taxing Authority (including any income (net or gross), gross receipts, profits, windfall profit, sales, use, goods and services, ad valorem, franchise, license, withholding, employment, social security, workers compensation, unemployment compensation, employment, capital stock, stamp, payroll, transfer, excise, import, real property, personal property, intangible property, excise, escheat, abandoned or unclaimed property, occupancy, recording, minimum or alternative minimum), together with any interest, penalty, additions to tax or additional amount imposed with respect thereto.

 

“Taxing Authority” means the Internal Revenue Service and any other Authority responsible for the collection, assessment or imposition of any Tax or the administration of any Law relating to any Tax.

 

“Tax Opinion” has the meaning set forth in Section 2.4(b).

 

 

“Tax Return” means any return, information return, declaration, election, claim for refund or credit, report or any similar statement, and any amendment thereto, including any attached schedule and supporting information, whether on a separate, consolidated, combined, unitary or other basis, that is filed or required to be filed with any Taxing Authority in connection with the determination, assessment, collection or payment of a Tax or the administration of any Law relating to any Tax.

 

“Trade Secrets” means any trade secrets and other confidential or proprietary information (including customer and supplier lists, customer and supplier records, pricing and cost information, reports, methodologies, technical information, proprietary business information, processes, plans, drawings, blue prints, know-how, inventions and invention disclosures (whether or not patented or patentable and whether or not reduced to practice), ideas, research in progress, algorithms, data, databases, data collections, designs, processes, formulae, drawings, schematics, blueprints, flow charts, models, strategies, prototypes, techniques, source code, source code documentation, testing procedures, testing results and business, financial, sales and marketing plans) and rights under applicable trade secret Law in the foregoing.

 

“Transactions” means the transactions contemplated by this Agreement to occur at or immediately prior to the Closing, including the Merger.

 

“Transaction Proposal” has the meaning set forth in Section 6.5(e).

 

“Transfer Taxes” has the meaning set forth in Section 8.5(c).

 

“Trust Account” has the meaning set forth in Section 5.9.

 

“Trust Agreement” has the meaning set forth in Section 5.9.

 

“Trust Fund” has the meaning set forth in Section 5.9.

 

“Trustee” has the meaning set forth in Section 5.9.

 

“Unaudited Financial Statements” has the meaning set forth in Section 4.9(a).

 

“Unpaid Expenses” means the Company Expenses and Parent Expenses that remain unpaid as of immediately prior to the Closing.

 

“Unvested Company Option” means each Company Option outstanding as of immediately prior to the Effective Time that is not vested as of immediately prior to the Effective Time or will not vest solely as a result of the consummation of the Merger.

 

“U.S. GAAP” means U.S. generally accepted accounting principles, consistently applied.

 

1.2  Construction.

 

(a)  References to particular sections and subsections, schedules, annexes and exhibits not otherwise specified are cross-references to sections and subsections, schedules, annexes and exhibits of this Agreement unless otherwise indicated. Captions are not a part of this Agreement, but are included for convenience, only. The table of contents contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

(b)  The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement and reference to a particular section of this Agreement will include all subsections thereof, unless, in each case, the context otherwise requires; and, unless the context requires otherwise, “party” means a party signatory hereto.

 

(c)  Any use of the singular or plural, or the masculine, feminine or neuter gender, includes the others, unless the context otherwise requires; the words “include,” “includes,” and “including” means “including without limitation”; the word “or” means “and/or”; the word “any” means “any one, more than one, or all”; the words “made available” mean that the subject documents or other materials were posted to the electronic data site maintained by the Company in connection with the transactions contemplated by this Agreement or otherwise provided to Parent or its Representatives in electronic form, in each case, at least forty-eight (48) hours prior to the date of this Agreement; and, unless otherwise specified, any financial or accounting term has the meaning of the term under United States generally accepted accounting principles as consistently applied heretofore by the Company.

 

 

(d)  Unless otherwise specified, any reference to any agreement (including this Agreement), instrument, or other document includes all schedules, exhibits, or other attachments referred to therein, and any reference to a statute or other law means such law as amended, restated, supplemented or otherwise modified from time to time and includes any rule, regulation, ordinance or the like promulgated thereunder, in each case, as amended, restated, supplemented or otherwise modified from time to time. Unless otherwise specified, all references to currency amounts in this Agreement shall mean United States Dollars.

 

(e) Any reference to a numbered schedule means the same-numbered section of the disclosure schedule. Any reference in a schedule contained in the disclosure schedules delivered by a party hereunder shall be deemed to be an exception to (or, as applicable, a disclosure for purposes of) the applicable representations and warranties (or applicable covenants) that are contained in the section or subsection of this Agreement that corresponds to such schedule and any other representations and warranties of such party that are contained in this Agreement to which the relevance of such item thereto is reasonably apparent on its face. The mere inclusion of an item in a schedule as an exception to (or, as applicable, a disclosure for purposes of) a representation or warranty shall not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such item would have a Material Adverse Effect or establish any standard of materiality to define further the meaning of such terms for purposes of this Agreement.

 

(f)  If any action is required to be taken or notice is required to be given within a specified number of days following a specific date or event, the day of such date or event is not counted in determining the last day for such action or notice. If any action is required to be taken or notice is required to be given on or before a particular day, the date that is the reference date in calculating such period shall be excluded when calculating the time before which or within which such action or notice is to be taken or given, and if such date which is not a Business Day, such action or notice shall be considered timely if it is taken or given on or before the next Business Day.

 

ARTICLE II

 

MERGER

 

2.1  Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), at the Effective Time, (a) Merger Sub shall be merged with and into the Company, (b) the separate corporate existence of Merger Sub shall thereupon cease, and the Company shall be the Surviving Corporation in the Merger, and (c) the Surviving Corporation shall become a wholly-owned Subsidiary of Parent. The Company Securityholders shall be entitled to the consideration described in, and in accordance with the provisions of, Article III.

 

2.2  Merger Effective Time. Subject to the provisions of this Agreement, at the Closing, the Company shall file a certificate of merger with the Secretary of State of the State of Delaware, executed in accordance with the relevant provisions of the DGCL (the “Certificate of Merger”). The Merger shall become effective upon the filing of the Certificate of Merger or at such later time as is agreed to by the parties and specified in the Certificate of Merger (the time at which the Merger becomes effective is herein referred to as the “Effective Time”).

 

2.3  Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate of Merger and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of the Company and Merger Sub shall become the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of the Surviving Corporation, which shall include the assumption by the Surviving Corporation of any and all agreements, covenants, duties and obligations of the Company and the Merger Sub set forth in this Agreement to be performed after the Closing. Merger Sub will be merged with and into the Company, and the separate corporate existence of Merger Sub will cease, and the Surviving Corporation will become wholly owned directly by Parent, all as provided under the DGCL and the provisions of this Agreement.

 

 

2.4  U.S. Tax Treatment.

 

(a)  For U.S. federal income tax purposes, the Merger is intended to constitute a “reorganization” within the meaning of Section 368(a) of the Code (the “U.S. Tax Treatment”). The parties to this Agreement hereby (i) adopt this Agreement insofar as it relates to the Merger as a “plan of reorganization” within the meaning of Section 1.368-2(g) of the United States Treasury regulations, (ii) agree to file and retain such information as shall be required under Section 1.368-3 of the United States Treasury regulations, and (iii) agree to file all Tax and other informational returns on a basis consistent with the U.S. Tax Treatment. Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, the parties acknowledge and agree that, other than the representations set forth in Sections 4.24(b) and 5.18(e), no party is making any representation or warranty as to the qualification of the Merger as a reorganization under Section 368(a) of the Code or as to the effect, if any, that any transaction consummated on, after or prior to the Effective Time has or may have on any such reorganization status. Each of the parties acknowledges and agrees that each such party (A) has had the opportunity to obtain independent legal and tax advice with respect to the transactions contemplated by this Agreement and (B) is responsible for paying its own Taxes, including any adverse Tax consequences that may result if the Merger is determined not to qualify as a reorganization under Section 368(a) of the Code.

 

(b)  If, in connection with the preparation and filing of the Parent SEC Documents, the SEC Statement or any Other Filing (each individually, a “Securities Filing”) or the SEC’s review thereof, the SEC requests or requires that a tax opinion with respect to the U.S. federal income tax consequences of the Merger be prepared and submitted in such connection (a “Tax Opinion”), (i) the Company and Parent shall each use its reasonable best efforts to deliver to Goodwin Procter LLP (“Goodwin”), in connection with any Tax Opinion to be rendered by such counsel, customary Tax representation letters satisfactory to such counsel, dated and executed as of the date such relevant filing shall have been declared effective by the SEC and such other date(s) as determined to be reasonably necessary by such counsel in connection with the preparation and filing of such Securities Filing, and (ii) the Company shall use its reasonable best efforts to cause Goodwin to furnish a Tax Opinion, subject to customary assumptions and limitations, to the effect that the U.S. Tax Treatment should apply to the Merger and describing the U.S. federal income tax consequences to the Company Securityholders in connection with the Merger. For the avoidance of doubt, in no event shall any such Tax Opinion be a condition to Closing.

 

2.5  Certificate of Incorporation and Bylaws.

 

(a)  At the Effective Time, the Company Certificate of Incorporation and bylaws, as in effect immediately prior to the Effective Time, shall cease to have effect and the certificate of incorporation and bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the certificate of incorporation and bylaws of the Surviving Corporation, except that references to the name of Merger Sub shall be replaced by references to the name of “Tomorrow.io Inc.”

 

(b)  Immediately prior to the Effective Time, Parent shall adopt the Amended and Restated Bylaws of Parent in the form attached hereto as Exhibit F.

 

2.6  Closing; Effective Time. Unless this Agreement is earlier terminated in accordance with Article X, the closing of the Merger (the “Closing”) shall take place virtually at 10:00 a.m. local time, on the second (2^nd) Business Day after the satisfaction or waiver (to the extent permitted by applicable law) of the conditions set forth in Article IX or at such other time, date and location as Parent and Company agree in writing. The parties may participate in the Closing via electronic means. The date on which the Closing actually occurs is hereinafter referred to as the “Closing Date”.

 

2.7  Post-Closing Board of Directors and Officers.

 

(a)  Immediately after the Closing, Parent’s Board of Directors will consist of seven (7) directors: (i) one (1) of whom shall be designated by Sponsor and shall be Adam Karkowsky and (ii) six (6) of whom shall be designated by the Company prior to Closing. At least a majority of the Board of Directors shall qualify as independent directors under the Securities Act and the Nasdaq rules.

 

(b)  The initial officers of Parent shall be as set forth on Schedule 2.7(b), who shall serve in such capacity in accordance with the terms of the Parent A&R Bylaws following the Effective Time.

 

(c)  From and after the Effective Time, the directors and officers of the Surviving Corporation shall be those persons set forth on Schedule 2.7(c) (or such other Persons as designated by the Company prior to the Closing).

 

2.8  Taking of Necessary Action; Further Action. If, at any time after the Closing, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and interest in, to and under, or possession of, all assets, property, rights, privileges, powers and franchises of the Company and the Merger Sub, the officers and directors of the Surviving Corporation are fully authorized in the name and on behalf of the Company and the Merger Sub, to take all lawful action necessary or desirable to accomplish such purpose or acts, so long as such action is not inconsistent with this Agreement.

 

 

2.9  No Further Ownership Rights in Company Securities. At the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of shares of Company Capital Stock or other securities of the Company on the records of the Company. From and after the Effective Time, the holders of certificates evidencing ownership of shares of Company Capital Stock of the Company outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Capital Stock, except as otherwise provided for herein or by Law.

 

2.10  Appraisal Rights. Notwithstanding anything to the contrary contained herein, any shares of Company Capital Stock that are issued and outstanding immediately prior to the Effective Time and in respect of which appraisal rights shall have been perfected, and not waived, withdrawn or lost, in accordance with the DGCL in connection with the Merger and that are owned by a holder who complies in all respects with Section 262 of the DGCL (such shares, “Dissenting Shares”) shall not be converted into the right to receive the applicable portion of the Consideration Shares, but shall instead be converted into the right to receive such consideration as may be determined to be due with respect to any such Dissenting Shares pursuant to the DGCL. At the Effective Time, (a) all Dissenting Shares shall be cancelled, extinguished and cease to exist and (b) the holders of Dissenting Shares shall be entitled only to such rights as may be granted to them under the DGCL. Each holder of Dissenting Shares who, pursuant to the DGCL, becomes entitled to payment thereunder for such shares shall receive payment therefor in accordance with the DGCL (but only after the value therefor shall have been agreed upon or finally determined pursuant to such provisions). If, after the Effective Time, any Dissenting Shares shall lose their status as Dissenting Shares, then any such shares shall immediately be deemed to have converted at the Effective Time into the right to receive the applicable portion of the Consideration Shares (upon the terms and conditions of this Agreement) in respect of such shares as if such shares never had been Dissenting Shares, and Parent shall issue and deliver (or cause to be issued and delivered) to the holder thereof, following the satisfaction of the applicable conditions set forth in this Agreement, the applicable portion of the Consideration Shares as if such shares never had been Dissenting Shares. The Company shall give Parent prompt written notice (and in any event within two (2) Business Days) of any demands received by the Company for appraisal of shares of Company Capital Stock, attempted withdrawals of such demands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate in and, following the Effective Time, direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, neither the Company nor Parent shall, except with the prior written consent of the other party (in its sole discretion), or as otherwise required under the DGCL, (i) make any payment or offer to make any payment with respect to, or settle or compromise or offer to settle or compromise, any claim or demand in respect of any Dissenting Shares, (ii) waive any failure to timely deliver a written demand for appraisal or otherwise comply with the provisions under Section 262 of the DGCL or (iii) agree or commit to do any of the foregoing.

 

ARTICLE III

CONSIDERATION

 

3.1  Conversion of Company Securities.

 

(a)  Conversion of Company Capital Stock. Subject to Section 2.10, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the Company Securityholders, (i) each share of Company Capital Stock issued and outstanding immediately prior to the Effective Time (other than the Dissenting Shares and shares of Company Series X Preferred Stock) shall be canceled and automatically converted into the right to receive a number of Parent Class A Shares equal to the Conversion Ratio and (ii) each share of Company Series X Preferred Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares) shall be canceled and automatically converted into the right to receive a number of Parent Class A Shares equal to the Series X Conversion Ratio (collectively, clauses (i) and (ii), the “Consideration Shares”). If any shares of Company Capital Stock issued and outstanding immediately prior to the Effective Time are shares of Company Restricted Stock, then the Parent Class A Shares issued in exchange for such Company Restricted Stock pursuant to the immediately preceding sentence shall to the same extent be unvested and subject to the same repurchase option or risk of forfeiture, and the certificates and/or book entries representing such Parent Class A Shares shall accordingly be marked with appropriate legends.

 

(b)  Treatment of Company Options. Prior to the Effective Time, the Company and Parent and the Board of Directors of the Company (or any duly authorized committee thereof) shall, as applicable, take or cause to be taken all corporate actions necessary, including adopting appropriate resolutions to provide that, as of the Effective Time, each Company Option (whether or not vested) shall be assumed by Parent and shall continue in full force and effect, containing the same terms, conditions, vesting and other provisions as are currently applicable to such Company Options; provided that (A) each such Company Option shall be exercisable for such number of Parent Class A Shares that equals the Conversion Ratio multiplied by the number of shares of Company Common Stock subject to such Company Option as of immediately prior to the Effective Time, in each case, at such per share exercise price that shall equal the per share exercise price of such Company Option as of immediately prior to the Effective Time divided by the Conversion Ratio (as so converted, a “Converted Company Option”), further provided that (B) with respect to each such Company Option, any fractional shares that would be issuable upon exercise thereof will be rounded down to the nearest whole number of Parent Class A Shares and the per share exercise price will be rounded up to the nearest whole cent. Parent shall adopt the Parent Equity Incentive Plan, which will cover the Converted Company Options, pursuant to Section 8.6; provided, however, that the per share exercise price and the number of Parent Class A Shares purchasable pursuant to each Converted Company Option shall be determined in a manner consistent with the requirements of Section 409A of the Code; further provided that in the case of any Unvested Company Options to which Section 422 of the Code applies, the exercise price and the number of Parent Class A Shares purchasable pursuant to the applicable Converted Company Option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code.

 

 

(c)  Treatment of the Company Warrants. At the Effective Time, the Company Warrants shall no longer be outstanding and each Person who previously held Company Warrants shall cease to have any rights with respect to such Company Warrants in accordance with its terms.

 

(d)  Conversion of Shares of Merger Sub. Each share of Merger Sub that is issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger and without further action on the part of the sole shareholder of Merger Sub, be converted into and become one share of the Surviving Corporation (and the shares of the Surviving Corporation into which the shares of Merger Sub are so converted shall be the only shares of the Surviving Corporation that are issued and outstanding immediately after the Effective Time). Each certificate evidencing ownership of shares of Merger Sub will, as of the Effective Time, be deemed to evidence ownership of such shares of the Surviving Corporation.

 

(e)  Treatment of Shares of Company Capital Stock Owned by the Company. At the Effective Time, all shares of Company Capital Stock that are owned by the Company as treasury shares immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof.

 

(f)  Surrender of Certificates. All Consideration Shares issued upon the surrender and cancellation of the Company Capital Stock, in accordance with the terms hereof, shall be deemed to have been issued in full satisfaction of all rights pertaining to such securities.

 

(g)  Lost or Destroyed Certificates. In the event any certificates representing shares of Company Capital Stock shall have been lost, stolen or destroyed, Parent shall issue in exchange for such lost, stolen or destroyed certificates or securities, as the case may be, upon the making of an affidavit of that fact by the holder thereof (without the requirement to post a bond), such securities, as may be required pursuant to this Section 3.1.

 

(h)  Capitalization Schedule. No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent a final and updated Capitalization Schedule, which sets forth the following information: (i) the name of each Company Securityholder; (ii) the number and type or class/series of each Company Security held by each Company Securityholder, including, if applicable to such Company Securityholder, the number of shares of Company Common Stock issuable upon conversion or exercise of such Company Security and the exercise price per share for such Company Security; (iii) the vesting arrangements with respect to each Company Security held by such Company Securityholder (including the vesting schedule, vesting commencement date, date fully vested and the extent to which such Company Security is or will be vested as of the Effective Time); (iv) the total number of Parent Class A Shares issuable pursuant to Section 3.1(a) in respect of each share of Company Capital Stock held by such Company Securityholder; and (v) the total number of Parent Class A Shares issuable pursuant to Section 3.1(b) upon conversion of each Company Option held by such Company Securityholder, and the respective exercise price per share applicable to such Company Option following the Effective Time. The parties agree that the Capitalization Schedule delivered by the Company to Parent prior to the Closing Date solely represents the Company’s good faith estimate of such information and calculations and is not binding on the parties in any respect.

 

3.2  No Fractional Shares. No fractional Parent Class A Shares, or certificates or scrip representing fractional Parent Class A Shares, will be issued upon the conversion of the Company Capital Stock pursuant to the Merger, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a stockholder of Parent. Any fractional Parent Class A Shares will be rounded down to the nearest whole number of Parent Class A Shares.

 

3.3  Withholding. Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement such amounts as may be required to be deducted or withheld with respect to the making of such payment under the Code, or under any provision of state, local or non-U.S. Tax Law. To the extent that amounts are so deducted and withheld and timely remitted to the appropriate Taxing Authorities, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Notwithstanding the foregoing, Parent, the Company and the Surviving Corporation shall use reasonable best efforts to reduce or eliminate any such withholding including requesting and providing recipients of consideration with a reasonable opportunity to provide documentation establishing exemptions from or reductions of such withholdings.

 

 

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

Except as set forth in the disclosure schedules delivered by the Company to Parent prior to the execution of this Agreement, the Company hereby represents and warrants to Parent that each of the following representations and warranties are true, correct and complete as of the date of this Agreement.

 

4.1  Corporate Existence and Power. The Company and each of its Subsidiaries is a corporation or other legal entity duly organized and validly existing under the Laws of the jurisdiction of its organization and has all power and authority required to own, lease and operate its properties and assets and to carry on the Business as presently conducted. The Company and each of its Subsidiaries is duly licensed or qualified to do business in each jurisdiction in which its properties are owned or leased by it or the operation of its Business as currently conducted makes such licensing or qualification necessary, except where the failure to be so licensed or qualified would not have a Material Adverse Effect. The Company is not in violation of its organizational documents. Complete and correct copies of the Company’s and its Subsidiaries’ organizational documents, as amended and in full force and effect as of the date of this Agreement, have been made available to Parent.

 

4.2  Authorization.

 

(a)  The execution, delivery and performance by the Company of this Agreement and the Additional Agreements to which the Company is or will be a party and the consummation by the Company of the transactions contemplated hereby and thereby are within the corporate powers of the Company and have been duly authorized by all necessary action on the part of the Company. This Agreement and the Additional Agreements to which the Company is or will be a party have been duly and validly executed and delivered by the Company. Assuming the due authorization, execution and delivery thereof by the other parties hereto, this Agreement constitutes, and, upon the execution and delivery thereof, each Additional Agreement to which the Company is or will be a party will, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitute, a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (the “Enforceability Exceptions”).

 

(b)  By resolutions duly adopted (and not thereafter modified or rescinded) by the requisite vote of the Board of Directors of the Company, the Board of Directors of the Company has (i) approved this Agreement, the Additional Agreements and the transactions contemplated hereby and thereby in accordance with the provisions of the DGCL and the Company Certificate of Incorporation; (ii) determined that this Agreement, the Additional Agreements and the transactions contemplated hereby and thereby, upon the terms and subject to the conditions set forth herein, are advisable and fair to and in the best interests of the Company and the Company Stockholders; (iii) directed that the adoption of this Agreement be submitted to the Company Stockholders for consideration and recommended that all of the Company Stockholders adopt this Agreement. The affirmative votes or written consents of (a) Persons holding a majority (on an as-converted to Company Common Stock basis) of the voting power of the Company Stockholders; and (b) Persons holding a majority of outstanding shares of Company Preferred Stock, voting as a separate class, in each case, who deliver written consents or are present in person or by proxy at such meeting and voting thereon are required to, and shall be sufficient to, approve this Agreement and the transactions contemplated hereby (the “Company Stockholder Approval”). No other corporate action is required on the part of the Company or any of the Company Securityholders for the Company to enter into this Agreement and the Additional Agreements to which the Company is or will be a party or to approve the Merger other than the Company Stockholder Approval.

 

4.3  Governmental Authorization. None of the execution, delivery or performance by the Company of this Agreement or any Additional Agreement to which the Company is or will be a party, or the consummation of the transactions contemplated hereby or thereby, requires any consent, approval, license, order or other action by or in respect of, or registration, declaration or filing with, any Authority, except for (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL, (b) the filings necessary to obtain CFIUS Approval and (c) the filing of any required premerger notification and report forms under the HSR Act.

 

 

4.4  Non-Contravention. None of the execution, delivery or performance by the Company of this Agreement or any Additional Agreement to which the Company is or will be a party, or the consummation of the transactions contemplated hereby or thereby, does or will (a) contravene or conflict with the organizational documents of the Company or its Subsidiaries, (b) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon or applicable to the Company or any of its Subsidiaries or by which any of the Company’s or its Subsidiaries’ properties or assets is or may be bound, (c) except for the Contracts listed on Schedule 4.8 requiring the Company or its Subsidiaries to obtain a consent under (but only as to the need to obtain such Company Consents), constitute a default under or breach of (with or without the giving of notice or the passage of time or both) or violate or give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of the Company or any of its Subsidiaries or require any payment or reimbursement or to a loss of any material benefit relating to the Business to which the Company or any of its Subsidiaries is entitled under any provision of any Permit, Contract, Lien or other instrument or obligations binding upon the Company or any of its Subsidiaries or by which any of the Company’s or any of its Subsidiaries’ properties or assets is or may be bound or any Permit, (d) cause a loss of any material benefit relating to the Business to which the Company or any of its Subsidiaries is entitled under any provision of any Permit or Contract binding upon the Company or any of its Subsidiaries or by which any of the Company’s or any of its Subsidiaries’ assets is or may be bound, (e) result in the creation or imposition of any Lien (except for Permitted Liens) on any of the Company’s or any of its Subsidiaries’ properties or assets or any of the Company Securities, or (f) require any consent, approval or waiver from any Person pursuant to any provision of the Company Certificate of Incorporation or by-laws, except (i) for the Company Stockholder Approval and (ii) in the case of clauses (b) through (e), for any conflicts, violations, breaches, defaults, loss of benefits, additional payments or other liabilities, alterations, terminations, amendments, accelerations, cancellations, or Liens that, or where the failure to obtain any consents, in each case, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

4.5  Capitalization.

 

(a)  The authorized capital stock of the Company consists of 95,000,000 shares of the Company Common Stock, par value $0.0001 per share, and 65,091,079 shares of preferred stock, par value $0.0001 per share (the “Company Preferred Stock”), of which 10,919,116 shares of Company Common Stock, 3,599,811 shares of Company Series Seed Preferred Stock, 3,188,400 shares of Company Series A Preferred Stock, 9,342,176 shares of Company Series A-1 Preferred Stock, 16,576,600 shares of Company Series B Preferred Stock, 4,962,302 shares of Company Series B-1 Preferred Stock, 12,043,718 shares of Company Series C Preferred Stock and 11,097,399 shares of Series D Preferred Stock are issued and outstanding as of the date of this Agreement. There are 13,581,347 shares of Company Common Stock reserved for issuance pursuant to outstanding unexercised Company Options. There are 17,800,000 shares of Company Common Stock reserved for issuance under the Equity Incentive Plan. In addition, the Company Warrants to purchase 4,280,673 shares of Company Series D Preferred Stock are issued and outstanding as of the date of this Agreement. No other shares of capital stock or other voting securities of the Company are issued, reserved for issuance or outstanding. All issued and outstanding shares of Company Common Stock and Company Preferred Stock are duly authorized, validly issued, fully paid and nonassessable. No shares of Company Common Stock or Company Preferred Stock, Company Options or Company Warrants were or are subject to, or were issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right (including under any provision of the DGCL, the Company Certificate of Incorporation or any Contract to which the Company is a party or by which the Company is bound). Each share of Company Common Stock or Company Preferred Stock and each Company Option and Company Warrant has been issued in compliance with applicable Law, the Company’s organizational documents (as in effect at the time of such issuance) and any other applicable Contracts governing the issuance of such securities and are free and clear of any Liens. Schedule 4.5(a) contains a true, correct and complete list of each Company Option and Company Warrant outstanding as of the date of this Agreement, the holder thereof, the number and class of shares of Company Capital Stock issuable thereunder or otherwise subject thereto, the grant date thereof, the vesting schedule (if applicable) and the exercise price and expiration date thereof. All outstanding Company Warrants constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions.

 

(b)  All Company Options are evidenced by award agreements in substantially the forms previously made available to Parent, and no Company Option is subject to terms that are materially different from those set forth in such forms. Each Company Option was validly granted and properly approved by the Board of Directors of the Company (or appropriate committee thereof) in accordance with the terms of the Equity Incentive Plan. Each Company Option held by a U.S. taxpayer has been granted with an exercise price that is intended to be no less than the fair market value of the underlying 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.

 

(c)  Except for the Company Restricted Stock, Company Options and the Company Warrants, there are no (i) outstanding warrants, options, agreements, convertible securities, performance units, stock appreciation, phantom stock, profit participation, restricted stock, restricted stock unit or other equity-based compensation award or other commitments or instruments pursuant to which the Company is or may become obligated to issue or sell any of its shares or other securities, (ii) outstanding obligations of the Company to repurchase, redeem, register for sale or otherwise acquire outstanding capital stock of the Company or any securities convertible into or exchangeable for any shares of capital stock of the Company, (iii) treasury shares of capital stock of the Company, (iv) bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote, are issued or outstanding, (v) preemptive or similar rights to purchase or otherwise acquire shares or other securities of the Company pursuant to any provision of Law, the Company Certificate of Incorporation or any Contract to which the Company is a party, or (vi) Liens (including any right of first refusal, right of first offer, proxy, voting trust, voting agreement or similar arrangement) with respect to the sale or voting of shares or securities of the Company (whether outstanding or issuable). There is no voting trust, proxy, rights plan, anti-takeover plan or other agreements or understandings with respect to the Company Common Stock or Company Preferred Stock.

 

 

(d)  As of the date of this Agreement, all outstanding shares of the Company Capital Stock are owned of record by the Persons set forth on the Capitalization Schedule in the amounts set forth opposite their respective names. All of the outstanding shares of Company Capital Stock are validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof.

 

(e)  Except as provided for in this Agreement, as a result of the consummation of the transactions contemplated hereby, no share capital, warrants, options or other securities of the Company are issuable and no rights in connection with any shares, warrants, options or other securities of the Company accelerate or become triggered (whether due to vesting, exercisability, convertibility or otherwise).

 

(f)  No shares of capital stock or equity interests of each of the Company’s Subsidiaries were or are subject to, or were issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right (including under any provision of the DGCL, the organizational documents of such Subsidiary or any Contract to which such Subsidiary is a party or by which such Subsidiary is bound). Each share of capital stock or equity interests of each of the Company’s Subsidiaries has been issued in compliance with applicable Law, the applicable Subsidiary’s organizational documents (as in effect at the time of such issuance) and any other applicable Contracts governing the issuance of such securities.

 

4.6  Corporate Records. All proceedings occurring since January 1, 2018 of the Board of Directors of the Company, including all committees thereof, and of the Company Stockholders, and all consents to actions taken thereby, are accurately reflected in the minutes and records contained in the corporate minute books of the Company and made available to Parent. The stockholder ledger of the Company is complete and accurate.

 

4.7  Subsidiaries. Schedule 4.7 sets forth a true, complete and correct list of each Subsidiary of the Company together with their jurisdiction of incorporation or organization, as applicable, and the Company does not directly or indirectly own, or hold any rights to acquire, any capital stock or any other securities or interests in any other Person. All of the issued and outstanding capital stock or equity interests of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable (to the extent such concepts are recognized in such Subsidiary’s jurisdiction of organization), and is owned by the Company free and clear of any Lien (including any right of first refusal, right of first offer, proxy, voting trust, voting agreement or similar arrangement). None of the Company’s Subsidiaries is in violation of its organizational documents. There are no outstanding options, warrants, rights or other securities convertible into or exercisable or exchangeable for any shares of capital stock (or other equity interests) of such Subsidiaries, any other commitments or agreements providing for the issuance of additional shares (or other equity interests), the sale of treasury shares, or for the repurchase or redemption of such Subsidiaries’ shares of capital stock (or other equity interests), or any agreements of any kind which may obligate any Subsidiary to issue, purchase, register for sale, redeem or otherwise acquire any of its shares of capital stock (or other equity interests) or the value of which is determined by reference to shares of capital stock or equity interests of the Company’s Subsidiaries.

 

4.8  Consents. The Contracts listed on Schedule 4.8 are the only Contracts binding upon the Company or any of its Subsidiaries or by which any of the Company’s or any of its Subsidiaries’ assets are bound, requiring a consent, approval, authorization, order or other action of or filing with any Person as a result of the execution, delivery and performance of this Agreement or any Additional Agreement to which the Company or any of its Subsidiaries is or will be a party or the consummation of the transactions contemplated hereby or thereby (each of the foregoing, a “Company Consent”), except for any Company Consents where the failure to obtain such Company Consent would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

 

4.9  Financial Statements.

 

(a)  The Company has delivered to Parent (a) the audited balance sheets of the Company and its Subsidiaries, and the related statements of operations and comprehensive loss, convertible preferred stock and stockholders’ equity (deficit) and cash flows, for the years ended December 31, 2019 and December 31, 2020 including the notes thereto (collectively, the “Annual Financial Statements”), and (b) the unaudited balance sheet of the Company and its Subsidiaries as of June 30, 2021 (the “Interim Balance Sheet”) and the related statements of operations and comprehensive loss, convertible preferred stock and stockholders’ equity (deficit) and cash flows for the six (6) months ended June 30, 2021 including the notes thereto (collectively, the “Unaudited Financial Statements” and, together with the Annual Financial Statements, the “Company Financial Statements”). The Company Financial Statements have been prepared in conformity with U.S. GAAP applied on a consistent basis and in accordance with the requirements of the Public Company Accounting Oversight Board for public companies and will comply, when delivered by the Company for inclusion in the Form S-4 for filing with the SEC following the date of this Agreement in accordance with Section 6.5, 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 Company Financial Statements fairly present, in all material respects, the financial position of the Company as of the dates thereof and the results of operations, changes in convertible preferred stock and stockholders’ equity and cash flows of the Company for the periods reflected therein. The Company Financial Statements were prepared from the Books and Records of the Company in all material respects. Since June 30, 2021 (the “Balance Sheet Date”), except as required by applicable Law or U.S. GAAP, there has been no change in any accounting principle, procedure or practice followed by the Company or in the method of applying any such principle, procedure or practice.

 

(b)  Except: (i) as specifically disclosed, reflected or fully reserved against on the Interim Balance Sheet; (ii) for liabilities and obligations incurred in the ordinary course of business since the date of the Interim Balance Sheet, (iii) for liabilities that are executory obligations under Contracts to which the Company or any of its Subsidiaries is a party (none of which, with respect to the liabilities described in clause (ii) and this clause (iii), results from, arises out of, or relates to any breach or violation of, or default under, a Contract or applicable Law); (iv) for expenses incurred in connection with the negotiation, execution and performance of this Agreement, any Additional Agreement or any of the transactions contemplated hereby or thereby; and (v) for liabilities set forth on Schedule 4.9(b), the Company and its Subsidiaries do not have any material liabilities, debts or obligations of any nature (whether accrued, fixed or contingent, liquidated or unliquidated, asserted or unasserted or otherwise) of the type required to be reflected on a balance sheet in accordance with U.S. GAAP.

 

4.10  Books and Records. The Books and Records accurately and fairly, in reasonable detail, reflect the transactions and dispositions of assets of and the providing of services by the Company. The Company maintains procedures of internal controls sufficient to provide reasonable assurance that: (i) transactions are executed only in accordance with the respective management’s authorization; (ii) all transactions are promptly and properly recorded for the relevant periods in accordance with the revenue recognition and expense policies maintained by the Company, as permitted by U.S. GAAP; and (iii) access to assets is permitted only in accordance with the respective management’s authorization. The Books and Records of the Company have been maintained, in all material respects in accordance with reasonable business practices.

 

4.11  Internal Accounting Controls. The Company has established a system of internal accounting controls sufficient to provide reasonable assurance that: (a) transactions are executed in accordance with management’s general or specific authorizations; (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. GAAP and the Company’s historical practices and to maintain asset accountability; (c) access to assets is permitted only in accordance with management’s general or specific authorization; and (d) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Neither the Company, any Subsidiary, nor to the Company’s Knowledge, an independent auditor or employee of the Company has identified or been made aware of (i) any significant deficiency or material weakness in the internal control over financial reporting utilized by the Company, (ii) any fraud, 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.

 

4.12  Absence of Certain Changes. From the Balance Sheet Date until the date of this Agreement, (a) the Company and its Subsidiaries have conducted in all material respects their respective businesses in the ordinary course and in a manner consistent with past practice; (b) there has not been any Material Adverse Effect; (c) the Company and its Subsidiaries have not taken any action that, if taken after the date of this Agreement and prior to the consummation of the Merger, would require the consent of Parent pursuant to Section 6.1; and (d) the Company and its Subsidiaries have not sold, assigned, transferred, permitted to lapse, abandoned or otherwise disposed of any right, title or interest in or to any of their respective material assets.

 

 

4.13  Properties; Title to the Company’s Assets.

 

(a)  All items of Tangible Personal Property have no defects, are in good operating condition and repair and function in accordance with their intended uses (ordinary wear and tear excepted), have been properly maintained and are suitable for their present uses and meet all specifications and warranty requirements with respect thereto. All of the Tangible Personal Property is located at the offices of the Company.

 

(b)  The Company and each of its Subsidiaries has good, valid and marketable title in and to, or in the case of the Leases and the assets which are leased or licensed pursuant to Contracts, a valid leasehold interest or license in or a right to use all of the tangible assets reflected on the Interim Balance Sheet. Except as set forth on Schedule 4.13(b), no such tangible asset is subject to any Lien other than Permitted Liens.

 

4.14  Litigation. In each case except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, there is no (i) Action pending or, to the Knowledge of the Company, threatened in writing against or affecting the Company or any of its Subsidiaries, any of the officers or directors of the Company (in their capacities as such), the Business, any of the Company’s or its Subsidiaries’ properties or assets or any Contract before any Authority; (ii) pending or, to the Knowledge of the Company, threatened in writing against any of the Company or its Subsidiaries, audits, examinations or investigations by any Authority against the Company or its Subsidiaries; and (iii) pending or threatened in writing Actions by any of the Company or its Subsidiaries against any third party. Neither the Company nor its Subsidiaries is party to a settlement or similar agreement regarding any of the matters set forth in the preceding sentence that contains any ongoing obligations, restrictions or liabilities (of any nature) that are material to the Company or its Subsidiaries. There are no outstanding judgments or Orders against the Company or its Subsidiaries. The Company and its Subsidiaries are not, and have not been in the past five (5) years, subject to any Action by any Authority.

 

4.15  Contracts.

 

(a)  Schedule 4.15(a) lists all of the following Contracts (collectively, such Contracts that are listed or should be listed on Schedule 4.15(a), “Material Contracts”) to which, as of the date of this Agreement, the Company or any of its Subsidiaries is a party or by which any of its assets is bound and which are currently in effect:

 

(i)  all Contracts that require or that the Company reasonably anticipates will involve annual payments or expenses incurred by, or annual payments or income to, the Company or any of its Subsidiaries of $500,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practice);

 

(ii)  all sales, advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar contracts and agreements, in each case requiring the payment of any commissions by the Company or any of its Subsidiaries in excess of $500,000 annually;

 

(iii)  each employment or consulting Contract, employee leasing Contract and consultant and sales representatives Contract with any current officer, director, employee, independent contractor or consultant of the Company or any of its Subsidiaries, under which the Company or any of its Subsidiaries (A) have continuing obligations for payment of annual compensation of at least $250,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) has severance, or post-termination obligations to such Person (other than COBRA obligations); or (C) has an obligation to make a payment upon consummation of the transactions contemplated hereby or as a result of a change of control of the Company;

 

(iv)  all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any of its Subsidiaries is a party;

 

(v)  all Contracts relating to any acquisitions or dispositions of material assets, properties or business divisions by the Company or any of its Subsidiaries (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practice);

 

(vi)  all Contracts under which the Company or any of its Subsidiaries is granted a license under any Intellectual Property owned by a third party, other than (A) Contracts for generally commercially available software (including Open Source Software) or hosted services, which for clarity do not contain any exclusive grant of rights to any Company Intellectual Property, (B) Contracts with the Company’s or its Subsidiaries’ employees and contractors entered into in the ordinary course of business, and (C) confidentiality or non-disclosure agreements entered into in the ordinary course of business (the “Standard Contracts”);

 

 

(vii)  all Contracts under which the Company or any of its Subsidiaries has granted a license to a third party under any Company Intellectual Property, other than Standard Contracts or customer or channel partner Contracts entered into in the ordinary course of business;

 

(viii)  all Contracts limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or industry or to solicit customers, with any Person or in any geographic area;

 

(ix)  all Contracts with or pertaining to the Company to which any Affiliate of the Company is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder;

 

(x)  all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company or any of its Subsidiaries holds a leasehold interest (including the Leases) and which involve payments to the lessor thereunder in excess of $500,000 per year;

 

(xi)  all Contracts creating or otherwise relating to outstanding Indebtedness or guarantees, direct or indirect, thereof (other than intercompany Indebtedness);

 

(xii)  all Contracts relating to the voting or control of the equity interests of the Company or the election of directors of the Company (other than the certificate of incorporation and bylaws of the Company);

 

(xiii)  all Contracts that may be terminated, or the provisions of which may be altered, as a result of the consummation of the transactions contemplated by this Agreement or any Additional Agreement to which the Company or any of its Subsidiaries is a party;

 

(xiv)  all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated hereby, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement;

 

(xv)  all collective bargaining or other agreements with a labor union or labor organization;

 

(xvi)  all Contracts requiring capital expenditures by the Company or any of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $500,000 annually;

 

(xvii)  all Contracts that (i) grants to any third person any “most favored nation rights” or equivalent rights (howsoever described) or (ii) grants to any third Person price guarantees for a period of greater than one year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $500,000 annually;

 

(xviii)  all Contracts evidencing an outstanding obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons;

 

(xix)  all Contracts with any Authority to which the Company or its Subsidiaries is a party; or

 

(xx)  any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xix) of this Section 4.15(a).

 

(b)  Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect and (iii) enforceable by and against the Company and/or its Subsidiary and each counterparty that is party thereto, subject, in the case of this clause (iii), to the Enforceability Exceptions. Neither the Company or its Subsidiaries nor, to the Company’s Knowledge, any other party to a Material Contract is in breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract and no event has occurred which with notice or lapse of time or both would become a breach of or default under any of the Material Contracts, and no party to any Material Contract has given any written, or to the Company’s Knowledge, oral, claim or notice of any such breach, default or event, which would reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto. True, correct and complete copies of all written Material Contracts have been made available to Parent.

 

 

4.16  Licenses and Permits. Schedule 4.16 correctly lists each license, franchise, permit, order or approval or other similar authorization required under applicable law to carry out or otherwise affecting, or relating in any way to, the Business, together with the name of the Authority issuing the same (the “Permits”). Such Permits are valid and in full force and effect, and none of the Permits will, assuming the related Company Consent has been obtained or waived prior to the Closing Date, be terminated or impaired or become terminable as a result of the transactions contemplated hereby. The Company or its Subsidiaries have all material Permits necessary to operate the Business. The Company and its Subsidiaries are not in material breach or violation of, or material default under, any such Permit, and, to the Company’s Knowledge, no basis exists which, with notice or lapse of time or both, would constitute any such breach, violation or default or give any Authority grounds to suspend, revoke, place conditions on or terminate any such Permit. The Company and its Subsidiaries have not received any written (or, to the Company’s Knowledge, oral) notice from any Authority regarding any material violation of any Permit. There has not been and there is not any pending or, to the Company’s Knowledge, threatened action, investigation or disciplinary proceeding by or from any Authority against the Company or its Subsidiaries involving any material Permit. To the Company’s Knowledge, none of the Permits upon its termination or expiration in the ordinary due course will not be renewed or reissued in the ordinary course of business upon terms and conditions substantially similar to its existing terms and conditions.

 

4.17  Compliance with Laws.

 

(a)  Each of the Company and its Subsidiaries is not in violation in any material respect of, and, since January 1, 2018, has been in compliance in all material respects with all applicable Laws. Since January 1, 2018, none of the Company and its Subsidiaries has been threatened in writing or given written notice of any violation of any Law or any judgment, order or decree entered by any Authority. Without limiting the generality of the foregoing, each of the Company and its Subsidiaries is, and during the last three (3) years has been, in material compliance with: (i) every Law applicable to the Company due to the specific nature of the Business, including Data Protection Laws and Laws applicable to lending activities; and (ii) every Law regulating or covering conduct in the workplace, including regarding sexual harassment or, on any legally impermissible basis, a hostile work environment. Since January 1, 2019, none of the Company or its Subsidiaries has been threatened or charged in writing (or to the Company’s Knowledge orally) with or given written (or to the Company’s Knowledge oral) notice of any violation of any Data Protection Law or any other Law referred to in or generally described in foregoing sentence and, to the Company’s Knowledge, the Company is not under any investigations with respect to any such Law.

 

4.18  Intellectual Property.

 

(a)  Schedule 4.18(a) sets forth a true, correct and complete list of all Patents owned or purported to be owned by the Company or any Subsidiary of the Company (“Company Patents”), registered and applied-for Marks owned or purported to be owned by the Company or any Subsidiary of the Company (“Company Marks”), and registered Copyrights owned or purported to be owned by the Company or any Subsidiary of the Company (“Company Copyrights”), specifying as to each, as applicable, the record owner; the date of filing, issuance or registration; the filing, issuance or registration number; and the jurisdiction where the filing, issuance or registration was made.

 

(b)  Except as set forth on Schedule 4.18(a):

 

(i)  the Company or its applicable Subsidiary exclusively owns the Company Intellectual Property, free and clear of all Liens, other than Permitted Liens;

 

(ii)  no Company Patent has been or is now involved in any reissue, re-examination, inter-partes review, post-grant review, or opposition proceeding;

 

(iii)  as of the date hereof, all registration, maintenance and renewal fees currently due in connection with the Company Patents, Company Marks, and Company Copyrights have been paid and all documents, recordations and certificates in connection with the Company Patents, Company Marks, and Company Copyrights currently required to be filed have been filed with the relevant patent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of prosecuting and maintaining the same and recording the Company’s or its Subsidiary’s ownership interests therein;

 

 

(iv)  all Company Patents, Company Marks, and Company Copyrights are subsisting, and, to the Knowledge of the Company, valid and enforceable;

 

(v)  there are no pending or, to the Knowledge of the Company, threatened claims against the Company or its Subsidiaries alleging that any of the operation of the Business or any activity by the Company or its Subsidiaries infringes or violates (or in the past infringed or violated) the rights of others in or to any Intellectual Property (“Third Party IP”) or constitutes a misappropriation of (or in the past constituted a misappropriation of) any subject matter of any Third Party IP or that any of the Company Intellectual Property is invalid or unenforceable;

 

(vi)  neither the operation of the Business, nor any activity by the Company or its Subsidiaries, infringes or violates (or in the past infringed or violated) any Third Party IP or constitutes a misappropriation of (or in the past constituted a misappropriation of) any subject matter of any Third Party IP, provided that the foregoing representation and warranty is made solely to the Company’s Knowledge with respect to the Patents and Patent rights of any third Person;

 

(vii)  to the Company’s Knowledge, (A) there is no, nor has there been any, infringement or violation by any person or entity of any of the Company Intellectual Property or the Company’s or its Subsidiaries’ rights therein or thereto and (B) there is no, nor has there been any, misappropriation by any person or entity of any of the Company Intellectual Property or the subject matter thereof;

 

(viii)  all founders, employees, contractors and consultants who contributed to the development of any of the Company Intellectual Property did so either (A) within the scope of his or her employment such that, subject to and in accordance with applicable Law, all such Company Intellectual Property arising therefrom became the exclusive property of the Company or its Subsidiary, as applicable, or (B) pursuant to written agreements assigning, subject to applicable Law, all such Company Intellectual Property arising from his or her employment or engagement to the Company or its Subsidiary free and clear of all Liens (other than Permitted Liens);

 

(ix)  no (A) government funding or (B) facility of a university, college, other educational institution or research center was used in the development of any Company Intellectual Property;

 

(x)  none of the Company Intellectual Property is subject to any pending or outstanding Order that adversely restricts the use, transfer, registration or licensing of any such Company Intellectual Property by the Company or any of its Subsidiaries;

 

(xi)  the Company and its Subsidiaries have taken reasonable security measures to protect the confidentiality and value of all Trade Secrets and other confidential information owned or purported to be owned by the Company or its Subsidiaries in the Business;

 

(xii)  to the Company’s Knowledge, the Company Products and the Company IT Systems are free of all viruses, worms, Trojan horses and other material known contaminants that would materially disrupt or have an adverse impact on the operation of the Company Products and the Company IT Systems;

 

 

(xiii)  the Company Products and the Company IT Systems function materially in accordance with their respective specifications and documentation and have not suffered any material malfunction or any errors or defects (other than those malfunctions, errors and defects that were timely remedied) that, individually or in the aggregate, caused the Company or any of its Subsidiaries to suffer any material harm, or material or recurring malfunctions that negatively impacted the Business as presently conducted;

 

(xiv)  in the last twelve (12) months, there has been no material failure of the Company IT Systems which has caused any material disruption to the Business of the Company or any of its Subsidiaries. The Company has taken commercially reasonable steps to provide for disaster recovery plans, procedures, and facilities and, as applicable, has taken commercially reasonable steps to implement such plans and procedures. The Company has taken commercially reasonable actions to protect the integrity and security of the Company IT Systems from unauthorized use, access, or modification by third parties; and

 

(xv)  the incorporation, linking, calling, distribution or other use in, by or with any Company Product of any Open Source Software does not obligate the Company or any of its Subsidiaries to disclose, make available, offer or deliver to any third party any portion of the source code of such Company Product or component thereof other than the applicable Open Source Software.

 

4.19  Data Privacy. The Company has implemented adequate policies and commercially reasonable security measures (A) regarding the collection, use, processing disclosure, confidentiality, integrity, availability and value of Personal Information, and business proprietary or sensitive information (including all Trade Secrets, items of Intellectual Property that are confidential, confidential information, data and materials licensed by the Company or otherwise used in the operation of the Business); and (B) regarding the integrity and availability of the information technology networks and software applications the Company owns, operates, or outsources. The Company has not experienced any information security incident that has resulting in unauthorized access to or disclosure of Personal Information, or compromised the integrity or availability of the Company’s information technology systems and the software applications the Company owns, operates, or outsources, and there has been no loss, damage, or unauthorized access, disclosure, use, or breach of security of any Company information in its possession, custody, or control, or otherwise held or processed on its behalf. The transactions contemplated by this Agreement will not result in the violation of any Data Protection Laws or the privacy policies of the Company, and following the Merger the Surviving Corporation will have the same rights to utilize the Personal Information currently utilized by the Company that the Company had prior to the Merger.

 

4.20  Employees; Employment Matters.

 

(a)  Schedule 4.20(a) sets forth a true, correct and complete list of each of the employees of the Company and its Subsidiaries who received compensation in excess of $250,000 for the fiscal years ended December 31, 2020 and 2019 setting forth the name, title, current salary or compensation rate for each such person.

 

(b)  Except as set forth on Schedule 4.20(b), the Company is not a party to or subject to any collective bargaining agreement, and there has been no activity or proceeding during the past three years by a labor union or representative thereof to organize any employees of the Company or any of its Subsidiaries. To the Knowledge of the Company, none of the employees of the Company or its Subsidiaries are represented by any labor organization or works council. There is no labor strike, material slowdown or material work stoppage or lockout pending or, to the Knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries, and neither the Company nor its Subsidiaries have experienced during the past three years any strike, material slowdown or material work stoppage, lockout or other collective labor action by or with respect to its employees. Since December 31, 2018, neither the Company nor any of its Subsidiaries has implemented any “plant closings” (as defined in the federal Worker Adjustment and Retraining Act of 1988 or any similar foreign, state or local plan closing or mass layoff statute, rule or regulation (the “WARN Act”) or employee layoffs that would implicate the WARN Act.

 

 

(c)  Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, each of the Company and its Subsidiaries (i) is in material compliance with all applicable Laws regarding employment and employment practices, including, without limitation, all Laws respecting terms and conditions of employment, workplace health and safety, employee classification, non-discrimination, wages and hours, immigration, disability rights, equal opportunity, “plant closings” (as defined in the WARN Act) and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues, classification of employees and independent contractors, and unemployment insurance. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries are not delinquent in payments to any employees or former employees for any services or amounts required to be reimbursed or otherwise paid.

 

(d)  As of the date of this Agreement, there are no pending or, to the Knowledge of the Company, threatened Actions against the Company or any of its Subsidiaries under any worker’s compensation policy or long-term disability policy. There is no Unfair Labor Practice (as defined in the National Labor Relations Act) charge or complaint pending before any applicable governmental Authority relating to the Company or any of its Subsidiaries or any employee or other service provider thereof.

 

(e)  Since January 1, 2019, (i) all individuals who perform or have performed services for the Company or any of its Subsidiaries have been properly classified under applicable Law (A) as employees or individual independent contractors and (B) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the FLSA and applicable state Law) and (ii) no such individual has been improperly included or excluded from any Plan and neither the Company nor any of its Subsidiaries has notice of any pending or threatened inquiry or audit from any Authority concerning any such classifications, except, in the case of each of clauses (i) and (ii), as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.

 

(f)  Since December 31, 2018, (i) no material allegations of sexual harassment or sexual misconduct have been made in writing against any director, officer or employee of the Company or any of its Subsidiaries, and (ii) neither the Company nor any of its Subsidiaries has entered into any settlement agreement related to allegations of sexual harassment or sexual misconduct by any director, officer or employee of the Company or any of its Subsidiaries.

 

4.21  Withholding. Except as disclosed on Schedule 4.21, all obligations of the Company or its Subsidiaries applicable to their respective employees, whether arising by operation of Law, by Contract, or attributable to payments by the Company or its Subsidiary to trusts or other funds or to any governmental agency, with respect to unemployment compensation benefits and social security benefits for its employees through the date hereof have been paid or adequate accruals therefor have been made on the Company Financial Statements. Except as disclosed on Schedule 4.21, all reasonably anticipated obligations of the Company and its Subsidiaries with respect to such employees (except for those related to wages during the pay period immediately prior to the Closing Date and arising in the ordinary course of business), whether arising by operation of Law or by Contract, for salaries and holiday pay, bonuses and other forms of compensation payable to such employees in respect of the services rendered by any of them prior to the date hereof have been or will be paid by the Company or its Subsidiary prior to the Closing Date.

 

4.22  Employee Benefits.

 

(a)  Schedule 4.22(a) sets forth a correct and complete list of all Plans. With respect to each Plan, the Company has made available to Parent or its counsel a true and complete copy, to the extent applicable, of: (i) each writing constituting a part of such Plan and all amendments thereto, including all plan documents, material employee communications, benefit schedules, trust agreements, and insurance contracts and other funding vehicles; (ii) the most recent annual report and accompanying schedule; (iii) the current summary plan description and any material modifications thereto; (iv) the most recent annual financial and actuarial reports; (v) the most recent determination letter received by the Company from the Internal Revenue Service regarding the tax-qualified status of such Plan, (vi) and any non-routine communications with any Authority within the past three years and (vii) the most recent written results of all required compliance testing.

 

(b)  No Plan is or has ever been (i) subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA, and none of the Company, or any ERISA Affiliate, has withdrawn at any time within the preceding six (6) years from any multiemployer plan or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that could reasonably be expected to result in any such liability to the Company.

 

 

(c)  With respect to each Plan that is intended to qualify under Section 401(a) of the Code, such Plan, including its related trust, has received a determination letter (or opinion letters in the case of any prototype plans) from the Internal Revenue Service that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, and to the Knowledge of the Company, nothing has occurred with respect to the operation of any such Plan that could cause the loss of such qualification or exemption or the imposition of any material liability, penalty or Tax under ERISA or the Code. No stock or other securities issued by the Company forms or has formed any part of the assets of any Plan that is intended to qualify under Section 401(a) of the Code.

 

(d)  There are no pending or, to the Knowledge of the Company, threatened Actions against or relating to the Plans or the assets of any of the trusts under such Plans (other than routine benefits claims). No Plan is presently under audit or examination (nor has written notice been received by the Company of a potential audit or examination) by any Authority.

 

(e)  Each Plan has been established, administered and funded in all material respects accordance with its terms and in compliance in all material respects with the applicable provisions of ERISA, the Code (including without limitation, COBRA, and the PPACA) and other applicable Laws. There is not now, nor, to the Knowledge of the Company, do any circumstances exist that could give rise to, any requirement for the posting of security with respect to any Plan or the imposition of any Lien on the assets of the Company under ERISA or the Code. All premiums due or payable with respect to insurance policies funding any Plan have been made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Company Financial Statements.

 

(f)  None of the Plans provide retiree health or life insurance benefits, except as may be required by Section 4980B of the Code, Section 601 of ERISA or any other applicable Law.

 

(g)  Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee of the Company or any of its Subsidiaries with respect to any Plan; (ii) increase any benefits otherwise payable under any Plan; or (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits. No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from the Company as a result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.

 

(h)  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 Company or any Subsidiary who is a “disqualified individual” within the meaning of Section 280G of the Code could reasonably be expected to 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.

 

(i)  Each Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) is in all material respects in documentary compliance with, and has been administered in all material respects in compliance with Section 409A of the Code.

 

(j)  With respect to each Foreign Plan, (i) all employer and employee contributions to each Foreign Plan required by Law or by the terms of such Foreign Plan have been made, or, if applicable, accrued in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Closing, with respect to all Service Providers or beneficiaries in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Plan, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; (iii) if intended to qualify for special Tax treatment (or permitted to have been approved to obtain any beneficial Tax or other status), such Foreign Plan meets all requirements for such treatment; (iv) if intended to be filed, registered or approved by a competent governmental Authority, has been duly and timely filed, registered or approved, as applicable; and (v) such Foreign Plan has been maintained in good standing with applicable governmental Authorities and in compliance with all applicable laws.

 

 

4.23 Real Property.

 

(a) Except as set forth on Schedule 4.23, the Company and its Subsidiaries do not own, or otherwise have an interest in, any Real Property, including under any Real Property lease, sublease, space sharing, license or other occupancy agreement. The Leases are the only Contracts pursuant to which the Company and its Subsidiaries lease any real property or right in any Real Property. The Company or its Subsidiary has good, valid, binding, enforceable and subsisting title to its respective leasehold estates in the offices described on Schedule 4.23, free and clear of all Liens. The Company and its Subsidiaries have not breached or violated any local zoning ordinance, and no notice from any Person has been received by the Company or its Subsidiaries or served upon the Company or its Subsidiaries claiming any violation of any local zoning ordinance.

 

(b) With respect to each Lease: (i) it is valid, binding and in full force and effect; (ii) all rents and additional rents and other sums, expenses and charges due thereunder have been paid; (iii) the Company or its Subsidiary has been in peaceable possession of the premises leased thereunder since the commencement of the original term thereof; (iv) no waiver, indulgence or postponement of the Company’s or its Subsidiary’s obligations thereunder has been granted by the lessor; (v) there exist no default or event of default thereunder by the Company or any of its Subsidiaries or, to the Company’s Knowledge, by any other party thereto; (vi) there exists no occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further event or condition, would become a default or event of default by the Company or any of its Subsidiaries thereunder; (vii) there are no outstanding claims of breach or indemnification or notice of default or termination thereunder; and (viii) it represents the valid and binding obligations of the Company or its Subsidiary party thereto and, to the Knowledge of the Company, represents the valid and binding obligations of the other parties thereto. The Company or its Subsidiary holds the leasehold estate established under such Lease free and clear of all Liens, except for Liens of mortgagees of the Real Property on which such leasehold estate is located. The Real Property leased by the Company and its Subsidiaries is in a state of maintenance and repair in all material respects adequate and suitable for the purposes for which it is presently being used, and there are no material repair or restoration works likely to be required in connection with such leased Real Property. The Company or its Subsidiary is in physical possession and actual and exclusive occupation of the whole of the leased premises, none of which is subleased or assigned to another Person. The Leases lease all useable square footage of the premises located at the leased Real Property. True, correct copies of all Leases have been made available to Parent. The Company does not owe any brokerage commission with respect to any Real Property.

 

4.24 Tax Matters. Except as set forth on Schedule 4.24:

 

(a) (i) The Company and its Subsidiaries have duly and timely filed all income and other material Tax Returns which are required to be filed by or with respect to it, and has paid all income and other material Taxes which have become due; (ii) all such Tax Returns are true, correct and complete and accurate in all material respects; (iii) there is no Action, within the past five years (or pending or proposed in writing), with respect to Taxes of the Company or any of its Subsidiaries; (iv) no statute of limitations in respect of the assessment or collection of any Taxes of the Company or any of its Subsidiaries has been waived or extended, which waiver or extension is in effect and the Company or any of its Subsidiaries is not presently contesting the Tax liability before any Taxing Authority or other Authority; (v) the Company and its Subsidiaries have complied in all respects with all applicable Laws relating to the reporting, payment, collection and withholding of Taxes and has duly and timely withheld or collected, paid over to the applicable Taxing Authority and reported all Taxes (including income, social, security and other payroll Taxes) required to be withheld or collected by the Company or any of its Subsidiaries; (vi) no stock transfer Tax, sales Tax, use Tax, real estate transfer Tax or other similar Tax will be imposed on the transfer of the shares of Company Capital Stock by the Company Stockholders to Parent pursuant to this Agreement; (vii) there is no outstanding request for a ruling from any Taxing Authority, request for consent by a Taxing Authority for a change in a method of accounting, subpoena or request for information by any Taxing Authority or agreement with any Taxing Authority with respect to the Company or any of its Subsidiaries; (viii) there is no Lien (other than Permitted Liens) for Taxes upon the Company or any of its Subsidiaries or any of the assets of the Company or any of its Subsidiaries; (ix) no claim has ever been made by a Taxing Authority in a jurisdiction where the Company or any of its Subsidiaries has not paid any Tax or filed Tax Returns, asserting that the Company or any of its Subsidiaries is or may be subject to Tax in such jurisdiction, neither the Company nor any of its Subsidiaries have been subject to Tax in any country other than the country of incorporation of the Company by virtue of having a permanent establishment or other place of business in that country, and the Company is and has always been tax resident solely in its country of incorporation;

 

 

(x) the Company has provided to Parent true, complete and correct copies of all Tax Returns relating to, and all audit reports and correspondence relating to each proposed adjustment, if any, made by any Taxing Authority with respect to, any taxable period ending after December 31, 2016; (xi) the Company and its Subsidiaries are not, and have never been, a party to any Tax sharing, allocation or indemnification Contract; (xii) the Company and its Subsidiaries are not and have never been included in any consolidated, combined or unitary Tax Return and the Company and its Subsidiaries do not have any liability for Taxes as a result of having been a member of any affiliated group within the meaning of Section 1504(a) of the Code, or any similar affiliated or consolidated group for Tax purposes under any state, local or foreign Law (other than a group the common parent of which is the Company), or has any liability for the Taxes of any Person (other than the Company) under United States Treasury regulations Section 1.1502-6 (or any similar provision of any state, local or foreign Law), as a transferee or successor, by Contract (other than Contracts entered into in the ordinary course of business, the primary purpose of which is not Tax); (xiii) no deficiency for any material Tax has been asserted or assessed in writing by a taxing authority against the Company or any of its Subsidiaries which deficiency has not been paid or is not being contested in good faith in appropriate Actions; (xiv) the Company and its Subsidiaries have not requested any extension of time within which to file any Tax Return, which Tax Return has since not been filed; and (xv) there is no outstanding power of attorney from the Company or any of its Subsidiaries authorizing anyone to act on behalf of the Company or any of its Subsidiaries in connection with any Tax, Tax Return or Action relating to any Tax or Tax Return of the Company.

 

(b) Neither the Company nor its Subsidiaries will be required to include any item of income or exclude any item of deduction for any taxable period (or a portion thereof) ending after the Closing Date as a result of any of the following that occurred or existed on or prior to the Closing Date: (i) a “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law), (ii) an installment sale or open transaction, (iii) a prepaid amount, (iv) an intercompany item under United States Treasury regulations Section 1.1502-13 or an excess loss account under United States Treasury regulations Section 1.1502-19, (v) a change in the accounting method of Parent pursuant to Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality or the use of a method of accounting with respect to any transaction that occurred on or before the Closing Date; or (vi) any inclusion under Section 951(a) or Section 951A of the Code attributable to (A) “subpart F income,” within the meaning of Section 952 of the Code, (B) direct or indirect holding of “United States property,” within the meaning of Section 956 of the Code, (C) “global intangible low-taxed income,” as defined in Section 951A of the Code, in each case, determined as if the relevant taxable years ended on the Closing Date or (D) any inclusion under Section 965 of the Code.

 

(c) The unpaid Taxes of the Company and its Subsidiaries did not, as of the most recent fiscal month end, exceed the reserve for Tax liability by more than $100,000 (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Unaudited Financial Statements in accordance with U.S. GAAP.

 

(d) The Company and its Subsidiaries have been in compliance in all respects with all applicable transfer pricing laws and legal requirements. The prices for any property or services (or for the use of any property), including interest and other prices for financial services, provided by or to the Company or its Subsidiaries are arm’s-length prices for purposes of the relevant transfer pricing laws.

 

(e) Neither the Company nor any of its Subsidiaries have taken any action (nor permitted any action to be taken), and is not aware of any fact or circumstance, that would reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

 

(f)   Neither the Company nor any of its Subsidiaries is a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code at any time during the five-year period ending on the Closing Date.

 

(g) Neither the Company nor any of its Subsidiaries have engaged in a “reportable transaction” within the meaning of United States Treasury regulations Section 1.6011-4(b).

 

(h) Within the past five (5) years, neither the Company nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax free treatment under Section 355 of the Code.

 

 

(i) Each of the Company and its Subsidiaries has timely and properly collected all material sales, use, value-added, and similar Taxes, and has timely and properly remitted such amounts to the appropriate Taxing Authority. Each of the Company and its Subsidiaries has properly requested, received, and retained all necessary resale certificates, exemption certificates, and other documentation supporting any claimed exemption or waiver of any material Taxes on sales or similar transactions as to which it would otherwise have been obligated to collect or withhold Taxes.

 

4.25 Environmental Laws. The Company and its Subsidiaries have not (i) received any written notice of any alleged claim, violation of or liability under any Environmental Law; (ii) disposed of, emitted, discharged, handled, stored, transported, used or released any Hazardous Materials; arranged for the disposal, discharge, storage or release of any Hazardous Materials; or exposed any employee or other individual to any Hazardous Materials so as to give rise to any liability or corrective or remedial obligation under any Environmental Laws; or (iii) entered into any agreement that may require it to guarantee, reimburse, pledge, defend, hold harmless or indemnify any other Person with respect to liabilities arising out of Environmental Laws or the Hazardous Material Activities of the Company or its Subsidiaries. There are no Hazardous Materials in, on or under any properties owned, leased or used at any time by the Company or any of its Subsidiaries that could give rise to any material liability or corrective or remedial obligation of the Company or its Subsidiaries under any Environmental Laws.

 

4.26 Finders’ Fees. Except as set forth on Schedule 4.26, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Company or any of its Affiliates who might be entitled to, directly or indirectly, any fee or commission from the Company, Merger Sub, Parent or any of their Affiliates upon consummation of the transactions contemplated by this Agreement or any of the Additional Agreements.

 

4.27 Directors and Officers. Schedule 4.27 sets forth a true, correct and complete list of all directors and officers of the Company.

 

4.28 Anti-Money Laundering Laws. The Company and its Subsidiaries and, to the Knowledge of the Company, their respective directors, officers, employees and any other Persons, in each case, acting on their behalf, in connection with the operation of the Business of the Company and its Subsidiaries are and have been at all times in compliance with anti-money laundering Laws in all applicable jurisdictions and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Authority (collectively, the “Money Laundering Laws”), and no Action involving the Company or its Subsidiaries with respect to the Money Laundering Laws is pending or, to the Knowledge of the Company, threatened.

 

4.29 Insurance. All forms of insurance owned or held by and insuring the Company and its Subsidiaries are set forth on Schedule 4.29, and such policies are in full force and effect. All premiums with respect to such policies covering all periods up to and including the date hereof have been paid, and no notice of cancellation, termination, denying renewal or material adverse amendments has been received with respect to any such policy. There is no existing default or event which, with or without the passage of time or the giving of notice or both, would constitute noncompliance with, or a default under, any such policy or entitle any insurer to terminate or cancel any such policy. Such policies will not in any way be affected by or terminate or lapse by reason of the transactions contemplated by this Agreement or the Additional Agreements. The insurance policies to which the Company and its Subsidiaries are party are sufficient for compliance with all requirements of all Contracts to which the Company and its Subsidiaries is a party or by which the Company or its Subsidiaries are bound and to operate the Business as currently conducted. There is no pending material claim by the Company or any of its Subsidiaries against any insurance carrier for which coverage has been denied or disputed by the applicable insurance carrier (other than a customary reservation of rights notice), which would reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have not been refused any insurance with respect to its assets or operations or had its coverage limited by any insurance carrier to which it has applied for any such insurance or with which it has carried insurance. The Company and its Subsidiaries do not have any self-insurance arrangements.

 

4.30 Related Party Transactions. Except as set forth in Schedule 4.30 or as contemplated by this Agreement, no Company Stockholder, Affiliate of the Company, current or former director, manager, officer or employee of the Company or any immediate family member or Affiliate of any of the foregoing (a) is a party to any Contract, or has otherwise entered into any transaction, understanding or arrangement, with the Company or (b) owns any property or right, tangible or intangible, which is used by the Company (each, an “Affiliate Transaction”). None of the Contracts listed in Schedule 4.30 was entered into on a basis other than on arm’s length.

 

 

4.31 Customers and Suppliers.

 

(a) Schedule 4.31(a) sets forth the top ten (10) customers (by revenue) of the Company and its Subsidiaries for the fiscal year ended December 31, 2020 (the “Material Customers”) and the amount of consideration paid to the Company and its Subsidiaries, collectively, by each Material Customer during such period. To the Company’s Knowledge as of the date hereof, no such Material Customer has expressed in writing to the Company or its Subsidiaries (i) its intention to cancel or otherwise terminate, or materially and adversely modify, its relationship (other than due to expiration of an existing contractual relationship) with the Company and its Subsidiaries, taken as a whole, or (ii) a material breach of the terms of any Material Contract with such Material Customer that has not been cured or remedied.

 

(b) Schedule 4.31(b) sets forth the top (10) suppliers (by expenditure) of the Company and its Subsidiaries for the fiscal year ended December 31, 2020 (the “Material Suppliers”) and the amount of consideration paid to each Material Supplier during such period. To the Company’s Knowledge as of the date hereof, no such Material Supplier has expressed in writing to the Company or its Subsidiaries (i) its intention to cancel or otherwise terminate, or materially and adversely modify, its relationship (other than due to expiration of an existing contractual relationship) with the Company and its Subsidiaries, taken as a whole, or (ii) a material breach of the terms of any Material Contract with such Material Supplier that has not been cured or remedied.

 

4.32 Government Contracts. Other than as set forth on Schedule 4.32, the Company and its Subsidiaries are not party to: (i) any Contract, including an 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 one hand, and any Authority, on the other hand; or (ii) 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 an Authority that is expressly identified in such subcontract or other Contract as the ultimate consumer of such goods or services.

 

4.33 Absence of Certain Business Practices. Since January 1, 2019: (a) the Company and its Subsidiaries and, to the Knowledge of the Company, their respective directors, officers, employees and any other Persons, in each case, acting on their behalf, in connection with the operation of the Business of the Company and its Subsidiaries, have been in material compliance with all applicable Specified Business Conduct Laws and have not knowingly engaged in any activity that would reasonably be expected to result in the Company and its Subsidiaries becoming the subject or target of any sanctions administered by the U.S. government; and (b) none of the Company or its Subsidiaries has (i) received written notice of, or made a voluntary, mandatory or directed disclosure to any Authority relating to, any actual or potential violation of any Specified Business Conduct Law; or (ii) been a party to or the subject of any pending or, to the Knowledge of the Company, threatened in writing, Action or investigation by or before any Authority related to any actual or potential violation of any Specified Business Conduct Law. None of the Company or its Subsidiaries, nor, to the Knowledge of the Company, any of their respective directors, executives, officers, employees, or agents is the subject or target of any sanctions, identified on the specially designated nationals or other blocked person list, or the target of restrictive export controls administered by the U.S. government, the United Nations Security Council, Her Majesty’s Treasury of the United Kingdom, or the European Union. None of the Company, its Subsidiaries nor, to the Knowledge of the Company, their respective directors, officers, employees and any other Persons, in each case, acting on their behalf, has (a) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) made any unlawful payment to foreign or domestic government officials, employees or political parties or campaigns, or (c) made any other unlawful payment. None of the Company, its Subsidiaries nor, to the Knowledge of the Company, their respective directors, officers, employees and any other Persons, in each case, acting on their behalf, has, directly or indirectly, given or agreed to give any gift or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder the Company or its Subsidiaries or assist the Company or its Subsidiaries in connection with any actual or proposed transaction, which, if not given or continued in the future, would reasonably be expected to (i) adversely affect the business or prospects of the Company or its Subsidiaries and (ii) subject the Company or its Subsidiaries to suit or penalty in any private or governmental Action.

 

 

4.34 Specified Company Securityholders. Collectively, the Specified Company Securityholders own at least the requisite number and class of issued and outstanding shares of Company Capital Stock required to obtain the Company Stockholder Approval.

 

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

 

Except as disclosed in the Parent SEC Documents filed with or furnished to the SEC prior to the date of this Agreement (other than any risk factor disclosures or other similar disclosures to the extent that they are of a cautionary or predictive nature), Parent and Merger Sub (the “Parent Parties”) hereby represent and warrant to the Company that each of the following representations and warranties are true, correct and complete as of the date of this Agreement:

 

5.1 Corporate Existence and Power. The Parent and Merger Sub are each corporations duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Merger Sub does not hold and has not held any material assets or incurred any material liabilities, and has not carried on any business activities other than in connection with the Merger.

 

5.2 Corporate Authorization. The execution, delivery and performance by the Parent Parties of this Agreement and the Additional Agreements to which they are or will be parties and the consummation by the Parent Parties of the transactions contemplated hereby and thereby are within the corporate powers of the Parent Parties and have been duly authorized by all necessary corporate action on the part of the Parent Parties, other than the Parent Stockholder Approval. This Agreement has been duly and validly executed and delivered by the Parent Parties and, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes, and upon the execution and delivery thereof, each Additional Agreement to which a Parent Party is party, will, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitute, a valid and legally binding agreement of the applicable Parent Party, enforceable against it in accordance with its terms, except as may be limited by the Enforceability Exceptions. This Agreement and the Additional Agreements to which a Parent Party is or will be party and the transactions contemplated hereby and thereby have been duly approved by Parent, on behalf of itself and in its capacity as the sole shareholder of Merger Sub. Parent intends to seek the affirmative vote of (i) holders of a majority of the outstanding shares of Parent Common Stock, voting together as a single class, cast at the Parent Stockholder Meeting to approve the Transaction Proposal, the Equity Plan Proposal, the ESPP Proposal, the Bylaws Proposal and the Nasdaq Proposal, (ii) (A) holders of a majority of the outstanding shares of Parent Common Stock, voting together as a single class, and (B) holders of a majority of the outstanding Parent Class A Shares, voting as a separate series, to approve the A&R Charter Proposal, and (iii) holders of a plurality of the outstanding shares of Parent Common Stock cast at the Parent Stockholder Meeting to approve the Election of Directors Proposal, and such votes shall be sufficient to approve the Parent Proposals, in each case, assuming a quorum is present (the foregoing approvals of the holders of the Parent Common Stock, the “Parent Stockholder Approval”), are the only votes of the holders of any of Parent’s capital stock necessary to adopt this Agreement and approve the Merger and the consummation of the other transactions contemplated hereby.

 

5.3 Governmental Authorization. Assuming the accuracy of the representations and warranties set forth in Article IV, neither the execution, delivery or performance of this Agreement by Parent requires any consent, approval, license or other action by or in respect of, or registration, declaration or filing with any Authority except for (i) any consents, approvals, licenses or other actions or registrations, declarations or filings, the absence of which would not reasonably be expected to impair the ability of Parent or Merger Sub to enter into and perform their obligations under this Agreement; (ii) applicable requirements, if any, of the Securities Act, the Exchange Act, blue sky laws, and the rules and regulations thereunder; (iii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL; (iv) the filings necessary to obtain CFIUS Approval; and (v) the filing of any required premerger notification and report forms under the HSR Act.

 

5.4 Non-Contravention. The execution, delivery and performance by the Parent Parties of this Agreement, or the consummation of the transactions contemplated hereby or thereby, do not and will not, assuming the Parent Stockholder Approval is obtained, (a) contravene or conflict with the organizational or constitutive documents of the Parent Parties, or (b) contravene or conflict with or constitute a violation of any provision of any Law or any Order binding upon the Parent Parties except, with respect to any of the foregoing, as would not reasonably be expected to impair the ability of Parent or Merger Sub to enter into and perform their obligations under this Agreement.

 

 

5.5 Finders’ Fees. Except for the Persons identified on Schedule 4.26, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Parent Parties or their Affiliates who might be entitled to, directly or indirectly, any fee or commission from the Company or any of its Affiliates upon consummation of the transactions contemplated by this Agreement or any of the Additional Agreements.

 

5.6 Issuance of Shares. The Consideration Shares, when issued in accordance with this Agreement, will be duly authorized and validly issued, and will be fully paid and nonassessable.

 

5.7 Capitalization.

 

(a) The authorized capital stock of Parent consists of 240,000,000 Parent Class A Shares of which 34,500,000 are outstanding, 60,000,000 Parent Class B Shares of which 8,625,000 are issued and outstanding, and 1,000,000 shares of preferred stock, par value $0.0001 per share (“Parent Preferred Stock”), none of which are issued and outstanding. In addition, warrants to purchase 17,433,333 Parent Class A Shares are issued and outstanding as of the date of this Agreement (the “Parent Warrants”). No other shares of capital stock or other securities of Parent are issued, reserved for issuance or outstanding. All issued and outstanding shares of Parent Common Stock and Parent Warrants are duly authorized, validly issued, fully paid and nonassessable and are not subject to, and were not issued in violation of, any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, Parent’s organizational documents or any Contract to which Parent is a party or by which Parent is bound. Except as set forth in Parent’s organizational documents, there are no outstanding contractual obligations of Parent to repurchase, redeem or otherwise acquire any shares of Parent Common Stock or any equity capital of Parent. There are no outstanding contractual obligations of Parent to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.

 

(b) The Merger Sub is authorized to issue 100 shares, par value $0.0001 per share (“Merger Sub Common Stock”), of which 100 shares of Merger Sub Common Stock are issued and outstanding as of the date hereof. No other shares or other voting securities of Merger Sub are issued, reserved for issuance or outstanding. All issued and outstanding shares of Merger Sub Common Stock are duly authorized, validly issued, fully paid and nonassessable and are not subject to, and were not issued in violation of, any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Merger Sub’s organizational documents or any contract to which Merger Sub is a party or by which Merger Sub is bound. There are no outstanding contractual obligations of Merger Sub to repurchase, redeem or otherwise acquire any shares of Merger Sub Common Stock or any equity capital of Merger Sub. There are no outstanding contractual obligations of Merger Sub to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.

 

(c) On or prior to the date of this Agreement, Parent has entered into Subscription Agreements with PIPE Investors, true, correct and complete copies of which have been provided to 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 Parent, Parent Class A Shares of at least the PIPE Investment Amount. As of the date of this Agreement, there are no other agreements, side letters, or arrangements between Parent and any PIPE Investors relating to the Subscription Agreement and, as of the date hereof, to the Knowledge of Parent, there are no facts or circumstances that may reasonably be expected to result in any of the conditions set forth in any of the Subscription Agreements not being satisfied, or the PIPE Investment Amount not being available to Parent, on the Closing Date. As of the date hereof, such Subscription Agreements are in full force and effect with respect to, and binding on, Parent and, to the Knowledge of Parent, on each PIPE Investor party thereto (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), in accordance with their terms, and has not been withdrawn or terminated, or otherwise amended or modified in any respect, and no withdrawal, termination, amendment or modification is contemplated by Parent. As of the date hereof, no event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent under any material term or condition of any Subscription Agreement and Parent 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 Subscription Agreement. The Subscription Agreements contain all of the conditions precedent (other than the conditions contained in the other Additional Agreements and this Agreement) to the obligations of the PIPE Investors to purchase the shares of Parent Class A Shares in the Private Placement in the commitment amount set forth in the Subscription Agreements on the terms therein. As of the date of this Agreement, no fees, cash consideration or other discounts are payable or have been agreed to be paid by Parent or any of its Subsidiaries (including, from and after the Closing, the Company and its Subsidiaries) to any PIPE Investor in respect of any PIPE Investment Amount.

 

 

(d) Prior to the Effective Time, all holders of Parent Class B Shares will have irrevocably waived any anti-dilution adjustment as to the ratio by which such shares convert into shares of Parent Class A Shares or any other measure with an anti-dilutive effect, in any case, that results from or is related to the transactions contemplated by this Agreement.

 

5.8 Information Supplied. None of the information supplied or to be supplied by the Parent Parties expressly for inclusion or incorporation by reference in the Form S-4 or the Proxy Statement, as applicable, will, as of the Effective Date and the date on which the Proxy Statement (or any amendment or supplement thereto) is first distributed to Parent Stockholders or at the time of the Parent Stockholder 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 (subject to the qualifications and limitations set forth in the materials provided by Parent or included in the Parent SEC Documents, the SEC Statement or any Other Filing).

 

5.9 Trust Fund. As of the date of this Agreement, Parent has at least $345,000,000 (including, if applicable, an aggregate of approximately $12,075,000 of deferred underwriting commission and other fees) in the trust fund established by Parent for the benefit of its public stockholders (the “Trust Fund”) in a trust account (the “Trust Account”) maintained by Continental Stock Transfer & Trust Company (the “Trustee”), and such monies are invested in United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended (or any successor rule), which invest only in direct U.S. government treasury obligations and held in trust by the Trustee pursuant to the Investment Management Trust Agreement dated as of March 10, 2021, between Parent and the Trustee (the “Trust Agreement”). The Trust Agreement is valid and in full force and effect and enforceable in accordance with its terms, except as may be limited by the Enforceability Exceptions, and has not been amended or modified. Except as contemplated in the Trust Agreement, there are no separate agreements, side letters or other agreements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the Parent SEC Documents to be inaccurate in any material respect or that would entitle any Person (other than stockholders of Parent holding Parent Class A Shares sold in Parent’s IPO who shall have elected to redeem their Parent Class A Shares pursuant to Parent’s amended and restated certificate of incorporation) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released except in accordance with the Trust Agreement and Parent’s Certificate of Incorporation. The Parent has performed all obligations required to be performed by it to date under, and is not in default or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and, to the Knowledge of Parent, no event has occurred which, with due notice or lapse of time or both, would constitute such a default thereunder. There are no claims or proceedings pending with respect to the Trust Account.

 

5.10 Listing. The Parent Class A Shares, Parent Warrants and Parent Units are listed on Nasdaq, with trading tickers “PTOC”, “PTOCW” and “PTOCU”, respectively. Parent is in compliance in all material respects with the rules of Nasdaq and, as of the date hereof, there is no Action or proceeding pending or, to the Knowledge of Parent, threatened against Parent by Nasdaq or the SEC with respect to any intention by such entity to deregister the Parent Class A Shares or terminate the listing of Parent Class A Shares on Nasdaq. None of Parent, Merger Sub or their respective Affiliates has taken any action in an attempt to terminate the registration of the Parent Class A Shares under the Exchange Act except as contemplated by this Agreement.

 

5.11 Board Approval. The Parent Board of Directors (including any required committee or subgroup of such board) has, as of the date of this Agreement, unanimously (a) declared the advisability of the transactions contemplated by this Agreement, (b) determined that the transactions contemplated hereby are in the best interests of the stockholders of Parent and (c) recommended to the stockholders of Parent to adopt and approve each of the Parent Proposals (the “Parent Board Recommendation”).

 

 

5.12 Parent SEC Documents and Financial Statements.

 

(a) Parent has filed all forms, reports, schedules, statements and other documents, including any exhibits thereto, required to be filed or furnished by Parent with the SEC since Parent’s formation under the Exchange Act or the Securities Act, together with any amendments, restatements or supplements thereto, and will use commercially reasonable efforts to file all such forms, reports, schedules, statements and other documents required to be filed subsequent to the date of this Agreement (the “Additional Parent SEC Documents”). Parent has made available to the Company copies in the form filed with the SEC of all of the following, except to the extent available in full without redaction on the SEC’s website through EDGAR for at least two (2) days prior to the date of this Agreement: (i) its Form 8-Ks filed since the IPO, and (ii) all other forms, reports, registration statements and other documents (other than preliminary materials if the corresponding definitive materials have been provided to the Company pursuant to this Section 5.12) filed by Parent with the SEC since Parent’s formation (the forms, reports, registration statements and other documents referred to in clauses (i) through (ii) above, whether or not available through EDGAR, collectively, the “Parent SEC Documents”). As of the date hereof, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Parent SEC Documents. To the Knowledge of Parent, none of the Parent SEC Documents filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.

 

(b) The Parent SEC Documents were, and the Additional Parent SEC Documents will be, prepared in all material respects in accordance with the requirements of the Securities Act, the Exchange Act, and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations thereunder. The Parent SEC Documents did not, and the Additional Parent SEC Documents will not, at the time they were or are filed, as the case may be, with the SEC (except to the extent that information contained in any Parent SEC Document or the Additional Parent SEC Documents has been or is revised or superseded by a later filed Parent SEC Document or Additional Parent SEC Document, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing does not apply to statements in or omissions in any information supplied or to be supplied by the Company expressly for inclusion or incorporation by reference in the SEC Statement or Other Filing.

 

(c) As used in this Section 5.12, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.

 

(d) The Parent SEC Documents contain true and complete copies of the unaudited balance sheet as of September 30, 2021, and statement of operations, cash flow and shareholders’ equity of Parent for the period from January 1, 2021 through September 30, 2021 (the “Parent Financial Statements”). Except as disclosed in the Parent SEC Documents, the Parent Financial Statements (i) fairly present in all material respects the financial position of Parent, as at the date thereof, and the consolidated results of operations and consolidated cash flows for the period then ended (subject to normal year-end adjustments and the inclusion of limited 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 subject to normal year-end adjustments and 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 in effect as of the respective dates thereof. The Books and Records of Parent have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements.

 

(e) Each director and executive officer of Parent 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. There are no outstanding loans or other extensions of credit made by Parent to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of Parent. Parent has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.

 

 

(f) Except as not required in reliance on exemptions from various reporting requirements by virtue of Parent’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”), Parent 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 Parent is made known to Parent’s principal executive officer and its principal financial officer. Such disclosure controls and procedures are effective in timely alerting Parent’s principal executive officer and principal financial officer to material information required to be included in Parent’s periodic reports required under the Exchange Act. Parent has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent Financial Statements for external purposes in accordance with GAAP.

 

(g) Neither Parent (including, to the Knowledge of Parent, any employee thereof) nor Parent’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by Parent, (ii) any fraud, whether or not material, that involves Parent’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by Parent or (iii) any written claim or allegation regarding any of the foregoing.

 

5.13 Business Activities.

 

(a) Since formation, neither Parent nor Merger Sub have conducted any business activities other than activities related to Parent’s IPO, the filing of Parent SEC Documents or directed toward the accomplishment of a Business Combination. Except as set forth in Parent’s governing documents or as otherwise contemplated by this Agreement or the Additional Agreements and the transactions contemplated hereby and thereby, there is no agreement, commitment, or Order binding upon Parent or Merger Sub or to which Parent or Merger Sub is a party which has the effect of prohibiting or impairing any business practice of Parent or Merger Sub or any acquisition of property by Parent or Merger Sub or the conduct of business by Parent or Merger Sub as currently conducted or as contemplated to be conducted as of the Closing, other than such effects which have not been and would not reasonably be expected to impair the ability of Parent or Merger Sub to enter into and perform their obligations under this Agreement.

 

(b) Except for Merger Sub and the transactions contemplated by this Agreement and the Additional Agreements, Parent 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 Additional Agreements and the transactions contemplated hereby and thereby, Parent has no material interests, rights, obligations or liabilities with respect to, and is not party to, bound by or has 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 and the Additional 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 Additional 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.

 

5.14 Absence of Certain Business Practices. Since Parent’s formation: (a) Parent and, to the Knowledge of Parent, its directors, officers, employees and any other Persons, in each case, acting on their behalf, in connection with the operation of Parent, have been in material compliance with all applicable Specified Business Conduct Laws and have not knowingly engaged in any activity that would reasonably be expected to result in Parent becoming the subject or target of any sanctions administered by the U.S. government; and (b) Parent has not (i) received written notice of, or made a voluntary, mandatory or directed disclosure to any Authority relating to, any actual or potential violation of any Specified Business Conduct Law; or (ii) been a party to or the subject of any pending or, to the Knowledge of Parent, threatened in writing, Action or investigation by or before any Authority related to any actual or potential violation of any Specified Business Conduct Law. Parent is not and, to the Knowledge of Parent, none of its directors, executives, officers, employees, or agents is the subject or target of any sanctions, identified on the specially designated nationals or other blocked person list, or the target of restrictive export controls administered by the U.S. government, the United Nations Security Council, Her Majesty’s Treasury of the United Kingdom, or the European Union. Parent has not and, to the Knowledge of Parent, none of its directors, officers, employees and any other Persons, in each case, acting on their behalf, has (a) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) made any unlawful payment to foreign or domestic government officials, employees or political parties or campaigns, or (c) made any other unlawful payment. Parent has not and, to the Knowledge of Parent, none of its directors, officers, employees and any other Persons, in each case, acting on their behalf, has, directly or indirectly, given or agreed to give any gift or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder Parent or assist Parent in connection with any actual or proposed transaction, which, if not given or continued in the future, would reasonably be expected to (i) adversely affect the business or prospects of Parent and (ii) subject Parent to suit or penalty in any private or governmental Action.

 

 

5.15 Affiliate Transactions. Except as described in Parent SEC Documents, there are no transactions, agreements, arrangements or understandings between Parent or any of its Subsidiaries, on the one hand, and any director, officer, employee, stockholder, warrant holder or Affiliate of Parent or any of its Subsidiaries, on the other hand.

 

5.16 Litigation. In each case except as would not reasonably be expected to be material to Parent, there is no (i) Action pending or, to the Knowledge of Parent, threatened in writing against or affecting Parent or any of the officers or directors of Parent (in their capacities as such) or any of Parent’s properties or assets or any Contract before any Authority; (ii) pending or, to the Knowledge of Parent, threatened in writing, audits, examinations or investigations by any Authority against Parent; and (iii) pending or threatened in writing Actions by Parent against any third party. Parent is not party to a settlement or similar agreement regarding any of the matters set forth in the preceding sentence that contains any ongoing obligations, restrictions or liabilities (of any nature) that are material to Parent. There are no outstanding judgments or Orders against Parent. Parent is not, and has not been since Parent’s formation, subject to any Action by any Authority.

 

5.17 Expenses, Indebtedness and Other Liabilities. Except as set forth on Schedule 5.17, Parent does not have any Indebtedness or other liabilities.

 

5.18 Tax Matters. Except as set forth on Schedule 5.18:

 

(a) (i) Parent has duly and timely filed all income and other material Tax Returns which are required to be filed by or with respect to it, and has paid all income and other material Taxes which have become due; (ii) all such Tax Returns are true, correct and complete and accurate in all material respects; (iii) there is no Action, within the past five years (or pending or proposed in writing), with respect to Taxes of Parent; (iv) no statute of limitations in respect of the assessment or collection of any Taxes of Parent has been waived or extended, which waiver or extension is in effect, and Parent is not presently contesting the Tax liability before any Taxing Authority or other Authority; (v) Parent has complied in all respects with all applicable Laws relating to the reporting, payment, collection and withholding of Taxes and has duly and timely withheld or collected, paid over to the applicable Taxing Authority and reported all Taxes (including income, social, security and other payroll Taxes) required to be withheld or collected by Parent; (vi) there is no Lien (other than Permitted Liens) for Taxes upon Parent or any of the assets of Parent; (vii) no claim has ever been made by a Taxing Authority in a jurisdiction where Parent has not paid any Tax or filed Tax Returns, asserting that Parent is or may be subject to Tax in such jurisdiction, Parent is not nor has it ever been subject to Tax in any country other than the country of incorporation of Parent by virtue of having a permanent establishment or other place of business in that country, and Parent is and has always been tax resident solely in its country of incorporation; (viii) Parent has provided to the Company true, complete and correct copies of all Tax Returns (if any) relating to, and all audit reports and correspondence relating to each proposed adjustment (if any) made by any Taxing Authority with respect to, any taxable period ending after December 31, 2020; (ix) there is no outstanding power of attorney from Parent authorizing anyone to act on behalf of Parent in connection with any Tax, Tax Return or Action relating to any Tax or Tax Return of Parent; (x) Parent is not, and has never been, a party to any Tax sharing, allocation, indemnification or similar Contract; (xi) Parent is and has never been included in any consolidated, combined or unitary Tax Return and Parent does not have any liability for Taxes as a result of having been a member of any affiliated group within the meaning of Section 1504(a) of the Code, or any similar affiliated or consolidated group for Tax purposes under any state, local or foreign Law (other than a group the common parent of which is Parent), or has any liability for the Taxes of any Person (other than Parent) under United States Treasury regulations Section 1.1502-6 (or any similar provision of any state, local or foreign Law), as a transferee or successor, by Contract (other than Contracts entered into in the ordinary course of business, the primary purpose of which is not Tax) or otherwise; (xii) no deficiency for any material Tax has been asserted or assessed in writing by a taxing authority against the Parent which deficiency has not been paid or is not being contested in good faith in appropriate Actions; and (xiii) Parent has not requested any extension of time within which to file any Tax Return, which Tax Return has since not been filed.

 

 

(b) The Parent will not be required to include any item of income or exclude any item of deduction for any taxable period (or a portion thereof) ending after the Closing Date as a result of any of the following that occurred or existed on or prior to the Closing Date: (i) a “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law), (ii) an installment sale or open transaction, (iii) a prepaid amount, (iv) an intercompany item under United States Treasury regulations Section 1.1502-13 or an excess loss account under United States Treasury regulations Section 1.1502-19, (v) a change in the accounting method of Parent pursuant to Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality or the use of a method of accounting with respect to any transaction that occurred on or before the Closing Date; or (vi) any inclusion under Section 951(a) or Section 951A of the Code attributable to (A) “subpart F income,” within the meaning of Section 952 of the Code, (B) direct or indirect holding of “United States property,” within the meaning of Section 956 of the Code, (C) “global intangible low-taxed income,” as defined in Section 951A of the Code, in each case, determined as if the relevant taxable years ended on the Closing Date or (D) any inclusion under Section 965 of the Code.

 

(c) The unpaid Taxes of Parent did not, as of the most recent fiscal month end, exceed the reserve for Tax liability by more than $100,000 (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Parent Financial Statements in accordance with U.S. GAAP.

 

(d) The Parent has been in compliance in all respects with all applicable transfer pricing laws and legal requirements. The prices for any property or services (or for the use of any property), including interest and other prices for financial services, provided by or to Parent are arm’s-length prices for purposes of the relevant transfer pricing laws.

 

(e) The Parent has not taken any action (nor permitted any action to be taken), and is not aware of any fact or circumstance, that would reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

 

(f)   Parent is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code at any time during the five-year period ending on the Closing Date.

 

(g) Parent has not engaged in a “reportable transaction” within the meaning of United States Treasury regulations Section 1.6011-4(b).

 

(h) Within the past five (5) years, Parent has not been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax free treatment under Section 355 of the Code.

 

(i) Parent has timely and properly collected all material sales, use, value-added, and similar Taxes, and has timely and properly remitted such amounts to the appropriate Taxing Authority. Parent has properly requested, received, and retained all necessary resale certificates, exemption certificates, and other documentation supporting any claimed exemption or waiver of any material Taxes on sales or similar transactions as to which it would otherwise have been obligated to collect or withhold Taxes.

 

 

5.19 Investment Company Act; JOBS Act. Parent is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, in each case within the meaning of the Investment Company Act. Parent constitutes an “emerging growth company” within the meaning of the JOBS Act.

 

ARTICLE VI

COVENANTS OF THE PARTIES PENDING CLOSING

 

6.1 Conduct of the Business. Each of the Company and Parent covenants and agrees that:

 

(a) From the date hereof through the Closing Date, except as expressly required by this Agreement or the Additional Agreements, each party shall conduct business only in the ordinary course consistent with past practices in all material respects and shall use its commercially reasonable efforts to preserve intact its business relationships with employees, clients and suppliers. Without limiting the generality of the foregoing, except as expressly required by this Agreement or the Additional Agreements or as set forth on Schedule 6.1, from the date hereof through and including the Closing Date, without the other party’s prior written consent (which shall not be unreasonably conditioned, withheld or delayed), neither the Company nor Parent shall, and the Company shall cause its Subsidiaries not to:

 

(i) amend, modify or supplement its certificate of incorporation or bylaws or other organizational or governing documents, or engage in any reorganization, reclassification, liquidation, dissolution or similar transaction;

 

(ii) amend, waive any provision of, terminate prior to its scheduled expiration date, or otherwise compromise in any way or relinquish any material right under, any Material Contract or other right or asset of the Company or Parent, as applicable;

 

(iii) solely in the case of the Company, modify, amend or enter into any contract, agreement, lease, license or commitment, including for capital expenditures, that would be considered a Material Contract if in effect on of the date hereof, except in the ordinary course of the Company’s business;

 

(iv) make any capital expenditures in excess of $1,000,000 (individually or in the aggregate);

 

(v) (A) pay, declare or promise to pay any dividends or other distributions with respect to its capital stock or other equity securities; (B) pay, declare or promise to pay any other amount to any stockholder, shareholder or other equityholder in its capacity as such (which for the avoidance of doubt does not include payment of salary, benefits, commissions and other regular and necessary customary payments made in the ordinary course of business consistent with past practices); or (C)  amend any term, right or obligation with respect to any outstanding shares of its capital stock or other equity securities;

 

(vi) (A) make any loan, advance or capital contribution to any Person; (B) incur any Indebtedness, including drawings under the lines of credit, if any, other than (1) loans evidenced by promissory notes made to Parent as working capital advances as described in the Prospectus and (2) intercompany Indebtedness; or (C) repay or satisfy any Indebtedness, other than the repayment of Indebtedness in accordance with the terms thereof (including with respect to working capital advances made to Parent, as described in the Prospectus);

 

(vii) suffer or incur any Lien, except for Permitted Liens, on the Company’s or Parent’s, as applicable, assets;

 

(viii) merge or consolidate or enter a similar transaction with, or acquire all or substantially all of the assets or business of, any other Person; make any material investment in any Person; or be acquired by any other Person;

 

 

(ix) terminate or allow to lapse any insurance policy protecting any of the Company’s or Parent’s assets, unless simultaneously with such termination or lapse, a replacement policy underwritten by an insurance company of nationally recognized standing having comparable deductions and providing coverage equal to or greater than the coverage under the terminated or lapsed policy for substantially similar premiums or less is in full force and effect;

 

(x) except as otherwise required by Law or the terms of any existing Plan as in effect on the date hereof, (i) establish, adopt, enter into or materially amend any Plan providing for severance or termination benefits or termination payments or make any grant of severance or termination benefits or termination payments to any person (other than in the ordinary course of business or for payments no greater than $50,000 per individual and $350,000 in the aggregate), (ii) make any grant of any cash retention payment to any Person, except as requested by Parent in writing or (iii) except in the ordinary course of business or as requested by Parent, establish, adopt, enter into, amend in any material respect or terminate any Plan or fail to continue to make timely contributions to each benefit plan in accordance with the terms thereof;

 

(xi) institute, settle or agree to settle any Action before any Authority, in each case in excess of $100,000 (exclusive of any amounts covered by insurance) or that imposes injunctive or other non-monetary relief on such party;

 

(xii) sell, exclusively license, allow to lapse or otherwise dispose of any Company Intellectual Property that is material to the Business;

 

(xiii) except as required by U.S. GAAP, make any material change in its accounting principles, methods or practices or write down the value of its assets;

 

(xiv) change its principal place of business or jurisdiction of organization;

 

(xv) issue, redeem or repurchase any Equity Interests (other than (A) with respect to the Company, the exercise of any Company Option outstanding on the date hereof or the exercise of any Company Warrant, (B) with respect to Parent, any redemption by Parent of Parent Class A Shares held by its public stockholder pursuant to Section 6.6, (C) with respect to Parent, in connection with conversion of the Parent Class B Shares pursuant to Parent’s organizational documents, or (D) with respect to Parent in satisfaction of working capital advances made to Parent, as described in the Prospectus);

 

(xvi) (A) make, change or revoke any material Tax election; (B) change any annual Tax accounting periods; (C) settle or compromise any material claim, notice, audit report or assessment in respect of Taxes of the Company; (D) enter into any Tax allocation, Tax sharing, Tax indemnity or other closing agreement relating to any Taxes of the Company (other than Contracts entered into in the ordinary course of business, the primary purpose of which is not Tax); or (E) surrender or forfeit any right to claim a material Tax refund;

 

(xvii) solely in the case of the Company, enter into any Affiliate Transactions;

 

(xviii) fail to duly observe and conform in all material respects to all applicable Law, including the Exchange Act, and Orders;

 

(xix) enter into any material new line of business outside of the business currently conducted as of the date of this Agreement; or

 

(xx) agree to do any of the foregoing.

 

6.2 Exclusivity.

 

(a) From the date hereof through the Closing Date, neither the Company, on the one hand, nor Parent, on the other hand, shall, and such Persons shall cause each of their respective officers, directors, Affiliates, managers, consultant, employees, representatives and agents (“Representatives”) not to, directly or indirectly, (i) encourage, solicit, initiate, engage or participate in negotiations with any Person concerning any Alternative Transaction, (ii) take any other action intended or designed to facilitate the efforts of any Person relating to a possible Alternative Transaction or (iii) approve, recommend or enter into any Alternative Transaction or any Contract related to any Alternative Transaction. For purposes of this Agreement, the term “Alternative Transaction” means any of the following transactions involving the Company or its Subsidiaries or Parent (other than the transactions contemplated by this Agreement): (A) any transaction or series of related transactions under which any Person(s), directly or indirectly, (x) acquires or otherwise purchases the Company or Parent or any of their respective controlled Affiliates or (y) all or a material portion of assets or businesses of the Company or Parent or any of their respective controlled Affiliates (in the case of each of clause (x) and (y), whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, tender offer or otherwise), or (B) any equity or similar investment in the Company or Parent or their respective controlled Affiliates (other than the issuance and sale of shares of Company Series X Preferred Stock by the Company).

 

 

(b) In the event that there is an unsolicited proposal for, or an indication of interest in entering into, an Alternative Transaction, communicated in writing to the Company or Parent or any of their respective representatives or agents (each, an “Alternative Proposal”), such party shall as promptly as practicable (and in any event within two (2) Business Days after receipt thereof) advise the other parties to this Agreement, orally and in writing, of such Alternative Proposal and the material terms and conditions thereof (including any changes thereto) and the identity of the Person making any such Alternative Proposal. The Company and Parent shall keep each other informed on a reasonably current basis of material developments with respect to any such Alternative Proposal. As used herein with respect to Parent, the term “Alternative Proposal” shall not include the receipt by Parent of any unsolicited communications (including the receipt of draft non-disclosure agreements) in the ordinary course of business inquiring as to Parent’s interest in a potential target for a business combination; provided, however, that Parent shall inform the person initiating such communication of the existence of this Agreement.

 

6.3 Access to Information. From the date hereof through and including the Closing Date, the Company and Parent shall each, to the best of its ability, (a) continue to give the other party, its legal counsel and its other representatives full access to the offices, properties and Books and Records, (b) furnish to the other party, its legal counsel and its other representatives such information relating to the business of the Company and Parent as such Persons may request and (c) cause its employees, legal counsel, accountants and other representatives to cooperate with the other party in its investigation of the Business (in the case of the Company) or the business of Parent (in the case of Parent); provided that no investigation pursuant to this Section 6.3 (or any investigation made prior to the date hereof) shall affect any representation or warranty given by the Company or Parent and provided further that any investigation pursuant to this Section 6.3 shall be conducted in such manner as not to interfere unreasonably with the conduct of the Business of the Company or the business of Parent, as applicable. Notwithstanding anything to the contrary expressed or implied in this Agreement, neither party shall be required to provide the access described above or disclose any information to the other party if doing so is, in such party’s reasonable judgement, reasonably likely to (i) result in a waiver of attorney-client privilege, work product doctrine or similar privilege or (ii) violate any contract to which it is a party or to which it is subject or applicable Law (it being agreed that the parties shall use their reasonable best efforts to cause such information to be provided in a manner that would not result in such waiver or violation).

 

6.4 Notices of Certain Events. Each of Parent and the Company shall promptly notify the other party of:

 

(a) any notice or other communication from any Person alleging or raising the possibility that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement or that the transactions contemplated by this Agreement might give rise to any Action or other rights by or on behalf of such Person or result in the loss of any rights or privileges of the Company (or Parent, post-Closing) to any such Person or create any Lien on any of the Company’s or Parent’s assets;

 

(b) any notice or other communication from any Authority in connection with the transactions contemplated by this Agreement or the Additional Agreements;

 

 

(c) any Actions commenced or threatened against, relating to or involving or otherwise affecting either party or any of their stockholders or their equity, assets or business or that relate to the consummation of the transactions contemplated by this Agreement or the Additional Agreements;

 

(d) the occurrence of any fact or circumstance which constitutes or results, or would reasonably be expected to constitute or result in a Material Adverse Change; and

 

(e) any inaccuracy of any representation or warranty of such party contained in this Agreement at any time during the term hereof, or any failure of such party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder, that would reasonably be expected to cause any of the conditions set forth in Article IX not to be satisfied.

 

6.5 Cooperation with Form S-4/Proxy Statement; Other Filings.

 

(a) The Company shall promptly provide to Parent such information concerning the Company and the Company Securityholders as is either required by the federal securities laws or reasonably requested by Parent for inclusion in the proxy statement/prospectus and Offer Documents. As promptly as practicable after the receipt by Parent from the Company of all such information, Parent and the Company shall and shall cause their respective counsel to prepare and Parent shall file with the SEC, and with all other applicable regulatory bodies, proxy materials for the purpose of soliciting proxies from holders of Parent Common Stock sufficient to obtain Parent Stockholder Approval at a meeting of holders of Parent Common Stock to be called and held for such purpose (the “Parent Stockholder Meeting”). Such proxy materials shall be in the form of a proxy statement (the “Proxy Statement”), which shall be included in a Registration Statement on Form S-4 (the “Form S-4”) filed by Parent with the SEC, pursuant to which the Parent Class A Shares issuable in the Merger shall be registered. Parent and the Company shall promptly respond to any SEC comments on the Form S-4. The Proxy Statement, the Form S-4 and the documents included or referred to therein, together with any supplements, amendments or exhibits thereto, are referred to herein as the “Offer Documents”.

 

(b) Parent shall (i) permit the Company and its counsel to review and comment on the Proxy Statement and Form S-4 and any exhibits, amendments or supplements thereto (or other related documents); (ii) shall consider any such comments in good faith; and (iii) not file the Proxy Statement and Form S-4 or any exhibit, amendment or supplement thereto without the prior written consent of the Company, not to be unreasonably withheld, conditioned or delayed. As promptly as practicable after receipt thereof, Parent shall provide to the Company and its counsel notice and a copy of all correspondence (or, to the extent such correspondence is oral, a summary thereof), including any comments from the SEC or its staff, between Parent or any of its representatives, on the one hand, and the SEC or its staff or other government officials, on the other hand, with respect to the Proxy Statement and the S-4, and, in each case, shall consult with the Company and its counsel concerning any such correspondence. Parent shall, with respect to, any response letters to any comments from the SEC consider any comments from the Company and its counsel in good faith. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Proxy Statement or the S-4 or any amendment or supplement thereto has been filed with the SEC and the time when the Form S-4 declared effective or any stop order relating to the Form S-4 is issued. Except as otherwise required by applicable Law, Parent covenants that none of Parent, the Parent Board of Directors nor any committee of the Parent Board of Directors shall withdraw or modify, or propose publicly or by formal action of Parent, the Parent Board of Directors or any committee of the Parent Board of Directors to withdraw or modify, in a manner adverse to the Company, the Parent Board Recommendation or any other recommendation by Parent, the Parent Board of Directors or any committee of the Parent Board of Directors of in connection with any of the Parent Proposals.

 

(c) As soon as practicable following the date on which the Form S-4 is declared effective by the SEC (such effective date, the “Effective Date”), Parent shall distribute the Proxy Statement to the holders of Parent Common Stock and, pursuant thereto, shall call the Parent Stockholder Meeting in accordance with its organizational documents and the laws of the State of Delaware and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby and the other matters presented to Parent’s stockholders for approval or adoption at the Parent Stockholder Meeting, including the matters described in Section 6.5(e).

 

 

(d) Parent and the Company shall comply with all applicable provisions of and rules under the Securities Act and Exchange Act and all applicable Laws of the State of Delaware and Nasdaq in the preparation, filing and distribution of the Form S-4 and the Proxy Statement (or any amendment or supplement thereto), as applicable, the solicitation of proxies under the Proxy Statement and the calling and holding of the Parent Stockholder Meeting. Without limiting the foregoing, Parent and the Company shall each ensure that each of the Form S-4, as of the Effective Date, and the Proxy Statement, as of the date on which it is first distributed to Parent’s stockholders, and as of the date of the Parent Stockholder Meeting, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading (provided that Parent shall not be responsible for the accuracy or completeness of any information relating to the Company or any other information furnished by the Company for inclusion in the Proxy Statement). The Company represents and warrants that the information relating to the Company supplied by the Company for inclusion in the Form S-4 or the Proxy Statement, as applicable, as of the Effective Date and the date on which the Proxy Statement (or any amendment or supplement thereto) is first distributed to Parent Stockholders or at the time of the Parent Stockholder Meeting, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time, a change in the information relating to the Company or any other information furnished by Parent, Merger Sub or the Company for inclusion in the Proxy Statement, which would make the preceding sentence incorrect, should be discovered by Parent, Merger Sub or the Company, as applicable, such party shall promptly notify the other parties of such change or discovery 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 Parent’s stockholders. In connection therewith, Parent, Merger Sub and the Company shall instruct their respective employees, counsel, financial advisors, auditors and other authorized representatives to reasonably cooperate with Parent and the Company as relevant if required to achieve the foregoing.

 

(e) In accordance with Parent’s amended and restated certificate of incorporation and applicable securities laws, rules and regulations, including the DGCL and rules and regulations of Nasdaq in the Proxy Statement, Parent shall seek from the holders of Parent Common Stock the approval of the following proposals: (i) adoption and approval of the Amended and Restated Certificate of Incorporation of Parent, in the form attached hereto as Exhibit G, including the change of the name of Parent to “The Tomorrow Companies Inc.” (the “A&R Charter Proposal”); (ii) approval of the Parent Equity Incentive Plan (the “Equity Plan Proposal”); (iii) approval of the Parent Employee Stock Purchase Plan (the “ESPP Proposal”); (iv) approval of the issuance of more than 20% of the issued and outstanding shares of Parent Common Stock to the Company Securityholders in connection with the Merger under applicable exchange listing rules (the “Nasdaq Proposal”); (v) approval of the Business Combination (as defined in the Parent Certificate of Incorporation) and the adoption and approval of this Agreement (the “Transaction Proposal”); (vi) the approval of the election of each of the directors nominated to comprise Parent’s Board of Directors as contemplated by Section 2.7 (the “Election of Directors Proposal”); (vii) approval to adjourn the Parent Stockholder Meeting, if necessary; (viii) adoption and approval of the Amended and Restated Bylaws of Parent in the form attached hereto as Exhibit F (the “Bylaws Proposal”); and (ix) approval to obtain any and all other approvals necessary or advisable to effect the consummation of the Merger as determined by Parent (the proposals set forth in the forgoing clauses (i) through (viii) collectively, the “Parent Proposals”).

 

(f) Parent and the Company shall each use its reasonable best efforts to cause the S-4 and the Proxy Statement to “clear” comments from the SEC and the S-4 to become effective as promptly as reasonably practicable. The Offer Documents shall provide the public stockholders of Parent with the opportunity to redeem all or a portion of their public Parent Class A Shares, up to that number of Parent Class A Shares that would permit Parent to maintain net tangible assets of at least $5,000,001, at a price per share determined in accordance with the Parent Certificate of Incorporation, all in accordance with applicable Law and any applicable rules and regulations of the SEC. In accordance with the Parent Certificate of Incorporation, the proceeds held in the Trust Account will be used for the redemption of the Parent Class A Shares held by Parent’s public stockholders who have elected to redeem such shares, if any.

 

(g) Notwithstanding anything else to the contrary in this Agreement or any Additional Agreements, Parent may make any public filing with respect to the Merger to the extent required by applicable Law.

 

(h) Parent shall call and hold the Parent Stockholder Meeting as promptly as practicable after the Effective Date for the purpose of seeking the approval of each of the Parent Proposals, Parent may postpone or adjourn the Parent Stockholder Meeting on one or more occasions for up to 30 days in the aggregate if such postponement or adjournment is necessary to solicit additional proxies to obtain approval of the Parent Proposals or if holders of Parent Class A Shares have elected to redeem a number of Parent Class A Shares as of such time that would reasonably be expected to result in the condition set forth in Section 9.1(j) not being satisfied as of Closing and Parent shall consult in good faith with the Company with respect to the date on which such meeting is to be held and any postponements or adjournments. Parent shall use reasonable best efforts to solicit from its stockholders proxies in favor of the approval and adoption of the Merger and this Agreement and shall take all other actions reasonably necessary or advisable to secure the Parent Stockholder Approval. The Company acknowledges that a substantial portion of the Proxy Statement shall include disclosure regarding the Company and its management, operations and financial condition. Accordingly, the Company agrees to as promptly as reasonably practical provide Parent with such information as shall be reasonably requested by Parent for inclusion in or attachment to the Proxy Statement, and that such information is accurate in all material respects and complies as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. The Company understands that such information shall be included in the Proxy Statement/Form S-4 or responses to comments from the SEC or its staff in connection therewith. The Company shall make, and cause each Subsidiary to make, their managers, directors, officers and employees available to Parent and its counsel and the Company’s counsel in connection with the drafting of such filings and mailings and responding in a timely manner to comments from the SEC.

 

 

6.6 Trust Account. Parent covenants that it shall cause the funds in the Trust Account to be disbursed in accordance with the Trust Agreement, including for the payment of (a) all amounts payable to public stockholders of Parent holding Parent Class A Shares who shall have validly redeemed their Parent Class A Shares upon acceptance by Parent of such Parent Class A Shares (the “Parent Redemption Amount”), (b) deferred underwriting commissions and the expenses to third parties to which they are owed, and (c) the remaining monies in the Trust Account to Parent after the Closing.

 

6.7 Obligations of Merger Sub. Parent shall take all action necessary to cause Merger Sub to perform its obligations under this Agreement and to consummate the transactions contemplated under this Agreement, upon the terms and subject to the conditions set forth in this Agreement.

 

6.8 Private Placement. Neither Parent, Merger Sub or any of their respective Affiliates or representatives shall make or agree to any amendments, changes, modifications or waivers to any of the Subscription Agreements, without the prior written consent of the Company. Parent and the Company shall each use its reasonable best efforts to take, or to cause to be taken, all actions required, necessary or that it otherwise deems to be proper or advisable to consummate the transactions contemplated by the Subscription Agreements on the terms described therein, including Parent using its reasonable best efforts to enforce its rights under the Subscription Agreements to cause such investors to pay to Parent the applicable purchase price under each investor’s applicable Subscription Agreement in accordance with its terms; provided that in no event shall Parent be obligated to pay any amount in connection with taking any such action. Without limiting the generality of the foregoing, each party shall give the other parties prompt written notice to the extent it becomes aware of any of the foregoing: (a) any requested amendment to any Subscription Agreement; (b) any breach or default to its knowledge by any party to any Subscription Agreement; (c) the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, or to its knowledge, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement; and (d) if such party does not expect Parent to receive all or any portion of the applicable purchase price under any investor’s Subscription Agreement in accordance with its terms.

 

6.9 Termination of Affiliate Transactions. On or before the Closing Date, the Company will cause the termination in full without any liability or obligation to Parent, the Company or any of their respective Affiliates following the Closing of all Contracts set forth on Schedule 6.9 hereto.

 

6.10 CFIUS Filing.

 

(a) To the extent any of the following have not been completed prior to the date hereof, as soon as practicable after the date of this Agreement, the CFIUS Parties shall prepare and file the CFIUS Declaration(s). Each of the CFIUS Parties shall use their respective reasonable best efforts to obtain CFIUS Approval, including without limitation (i) promptly preparing and submitting a CFIUS Notice in the event that CFIUS requests that any of the CFIUS Parties submit a CFIUS Notice pursuant to 31 C.F.R. § 800.407(a)(1); and (ii) providing any additional information requested by CFIUS or any other agency or branch of the U.S. government in connection with the CFIUS assessment, review, or investigation of the transaction contemplated by this Agreement, within the time periods specified in the applicable regulations, or otherwise specified by the CFIUS staff.

 

 

(b) Notwithstanding anything to the contrary herein, the CFIUS Parties shall as promptly as practicable, take, or cause to be taken, all actions and do, or cause to be done, and assist and cooperate with the filing persons in doing, all things necessary, proper or advisable to obtain CFIUS Approval, including taking all such action as may be necessary to resolve such objections, if any, as CFIUS may assert with respect to the Transactions, provided that in no event shall any of the CFIUS Parties be obligated to, in order to obtain the CFIUS Approval, consent to take any actions that would reasonably be anticipated to have a material adverse impact on any of the CFIUS Parties and their respective Subsidiaries following the Merger, including the Surviving Corporation, taken as a whole.

 

(c) Each of the CFIUS Parties shall, in connection with the efforts to obtain the CFIUS Approval, (i) cooperate in all respects and consult with each other in connection with the CFIUS Declaration(s) or CFIUS Notice(s), including by allowing the other parties to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions; (ii) promptly inform the other parties of any communication received by such party from, or given by such party to, CFIUS, by promptly providing a copy of any such written communications, except for any exhibits to such communications providing personal identifying information, any sensitive business confidential information and any sensitive personal information that a party declines to share; and (iii) permit the other parties to review in advance any communication that it gives to, and consult with each other in advance of any meeting, telephone call or conference with CFIUS, and to the extent not prohibited by CFIUS, give the other party the opportunity to attend and participate in any telephonic conference or in-person meeting with CFIUS, in each of clauses (i), (ii) and (iii) of this Section 6.10 subject to confidentiality considerations contemplated by the DPA or required by CFIUS.

 

(d) The CFIUS Parties for a CFIUS Notice, if any, shall split equally any CFIUS filing fees in connection with such CFIUS Notice.

 

ARTICLE VII

COVENANTS OF THE COMPANY

 

7.1 Reporting; Compliance with Laws. From the date hereof through and including the Closing Date:

 

(a) The Company shall duly and timely file all material Tax Returns required to be filed with the applicable Taxing Authorities and pay any and all Taxes due and payable during such time period.

 

7.2 Commercially Reasonable Efforts to Obtain Consents. The Company shall use its commercially reasonable efforts to obtain any Company Consent required for the execution, delivery and performance by the Company of this Agreement and the Additional Agreements to which the Company is or will be a party and the consummation by the Company of the transactions contemplated hereby and thereby, including each Company Consent set forth on Schedule 7.2.

 

7.3 Company’s Stockholders Approval.

 

(a) As promptly as reasonably practicable, and in any event within two (2) Business Days following the Effective Date (the “Company Stockholder Written Consent Deadline”), the Company shall obtain and deliver to Parent a true, complete and correct copy of a written consent (in form and substance reasonably satisfactory to Parent and certified by an executive officer of the Company) evidencing the Company Stockholder Approval that is duly executed by the Company Stockholders that hold at least the requisite number and class of issued and outstanding shares of Company Capital Stock required to obtain the Company Stockholder Approval (the “Company Stockholder Written Consent”).

 

 

(b) Neither the Company’s Board of Directors, nor any committee thereof, shall withhold, withdraw, amend, modify, change or propose or resolve to withhold, withdraw, amend, modify or change, in each case in a manner adverse to Parent, the Company Board Recommendation.

 

ARTICLE VIII

COVENANTS OF ALL PARTIES HERETO

 

8.1 Commercially Reasonable Efforts; Further Assurances; Governmental Consents.

 

(a) Except with respect to the matters set forth in Section 6.5 (which shall be subject to the terms and conditions of Section 6.5) or where a different efforts standard is expressly set forth herein, and otherwise subject to the terms and conditions of this Agreement, each party shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable Laws, or as reasonably requested by the other parties, to consummate and implement expeditiously each of the transactions contemplated by this Agreement, including using its reasonable best efforts to (i) obtain all necessary actions, nonactions, waivers, consents, approvals and other authorizations from all applicable Authorities prior to the Effective Time; (ii) avoid an Action by any Authority, and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated by this Agreement. The parties shall execute and deliver such other documents, certificates, agreements and other writings and take such other actions as may be necessary or desirable in order to consummate or implement expeditiously each of the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, the parties agree to make, or cause to be made, within ten (10) Business Days after the date hereof, filing a notification and report form under the HSR Act

 

(b) Except with respect to the matters set forth in Section 6.5 (which shall be subject to the terms and conditions of Section 6.5) or where a different efforts standard is expressly set forth herein, and otherwise subject to applicable Law, each of the Company and Parent agrees to (i) cooperate and consult with the other regarding obtaining and making all notifications and filings with Authorities, (ii) furnish to the other such information and assistance as the other may reasonably request in connection with its preparation of any notifications or filings, (iii) keep the other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications received by such party from, or given by such party to, any third party or any Authority with respect to such transactions, (iv) permit the other party to review and incorporate the other party’s reasonable comments in any communication to be given by it to any Authority with respect to any filings required to be made with, or action or nonactions, waivers, expirations or terminations of waiting periods, clearances, consents or orders required to be obtained from, such Authority in connection with execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (v) to the extent reasonably practicable, consult with the other in advance of and not participate in any meeting or discussion relating to the transactions contemplated by this Agreement, either in person or by telephone, with any Authority in connection with the proposed transactions unless it gives the other party the opportunity to attend and observe; provided, however, that, in each of clauses (ii), (iii) and (iv) above, that materials may be redacted (A) to remove references concerning the valuation of such party and its Affiliates, (B) as necessary to comply with contractual arrangements or applicable Laws, and (C) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.

 

8.2 Confidentiality. Except as necessary to complete the Offer Documents or any Other Filings, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall hold and shall cause their respective Representatives to hold in strict confidence, unless compelled to disclose by judicial or administrative process or by other requirements of Law, all documents and information concerning the other party furnished to it by such other party or its Representatives in connection with the transactions contemplated by this Agreement (except to the extent that such information can be shown to have been (a) previously known by the party to which it was furnished, (b) in the public domain through no fault of such party or (c) later lawfully acquired from another source, which source is not the agent of the other party and is not under any obligation of confidentiality with respect to such information); and no party shall release or disclose such information to any other Person, except its Representatives in connection with this Agreement. In the event that any party believes that it is required to disclose any such confidential information pursuant to applicable Law, to the extent legally permissible, such party shall give timely written notice to the other party so that such party may have an opportunity to obtain a protective order or other appropriate relief.

 

 

Each party shall be deemed to have satisfied its obligations to hold confidential information concerning or supplied by the other party if it exercises the same care as it takes to preserve confidentiality for its own similar information. The parties acknowledge that some previously confidential information will be required to be disclosed in the Offer Documents and Other Filings.

 

8.3 Directors’ and Officers’ Indemnification and Liability Insurance.

 

(a) All rights to indemnification for acts or omissions occurring through the Closing Date now existing in favor of the current directors and officers of the Company and Parent as provided in their respective organizational documents or in any indemnification agreements shall survive the applicable Merger and shall continue in full force and effect in accordance with their terms.

 

(b) Prior to the Closing, Parent and the Company shall reasonably cooperate in order to obtain directors’ and officers’ liability insurance for Parent and the Company that shall be effective as of Closing and will cover (i) those Persons who were directors and officers of the Company prior to the Closing and (ii) those Persons who will be the directors and officers of Parent and its Subsidiaries (including the Company after the Effective Time) at and after the Closing on terms not less favorable than the better of (x) the terms of the current directors’ and officers’ liability insurance in place for the Company’s directors and officers and (y) the terms of a typical directors’ and officers’ liability insurance policy for a company whose equity is listed on Nasdaq which policy has a scope and amount of coverage that is reasonably appropriate for a company of similar characteristics (including the line of business and revenues) as the Company.

 

(c) The provisions of this Section 8.3 are intended to be for the benefit of, and shall be enforceable by, each Person who will have been a director or officer of the Company or Parent for all periods ending on or before the Closing Date and may not be changed with respect to any officer or director without his or her written consent.

 

(d) Prior to the Effective Time, the Company shall be permitted to obtain and fully pay the premium for a six year prepaid “tail” policy for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ liability insurance policies, for claims reporting or discovery period of six years from and after the Effective Time, on terms and conditions providing coverage retentions, limits and other material terms substantially equivalent to the current policies of directors’ and officers’ liability insurance maintained by the Company with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby (the “Tail Policy”).

 

8.4 Nasdaq Listing. Parent shall use its reasonable best efforts to cause (a) Parent’s initial listing application with the Nasdaq in connection with the transactions contemplated by this Agreement to have been approved; (b) all applicable initial and continuing listing requirements of the Nasdaq to be satisfied; and (c) the Consideration Shares, to be approved for listing on the Nasdaq, subject to official notice of issuance, in each case, as promptly as reasonably practicable after the date of this Agreement and in any event prior to the Effective Time and the Company shall assist and cooperate with Parent in respect of each of the foregoing.

 

8.5 Certain Tax Matters.

 

(a) Neither Parent nor the Company shall take any action, or fail to take any action, that could reasonably be expected to cause the Merger to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Parent and the Company intend to report and, except to the extent otherwise required by a change in Law, shall report, for U.S. federal income tax purposes, the Merger consistent with the U.S. Tax Treatment, unless otherwise required by applicable Law.

 

(b) The Company shall (and shall cause its Affiliates to) provide any information reasonably requested to allow Parent to comply with any information reporting or withholding requirements contained in the Code or other applicable Laws with respect to the transactions contemplated by, or any payment made in connection with, this Agreement.

 

 

(c) All transfer, documentary, sales, use, value added, goods and services, stamp, registration, notarial fees and other similar Taxes and fees (collectively, “Transfer Taxes”), shall be paid by the Surviving Corporation. After the Closing Date, the Surviving Corporation will prepare and file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes that are required to be filed after the Closing Date, and, if required by applicable Law, the Company Securityholders and Parent will, and will cause their respective Affiliates to, cooperate and join in the execution of any such Tax Returns and other documentation, as applicable. Each party shall (and shall cause its Affiliates to) provide certificates or forms, and timely execute any Tax Return, that are necessary or appropriate to establish an exemption for (or reduction in) any Transfer Tax.

 

(d) On or no more than thirty (30) days prior to the Closing Date, the Company will deliver to Parent a duly executed and acknowledged certificate, in form and substance reasonably acceptable to Parent and in compliance with Section 1445 of the Code, with proof reasonably satisfactory to Parent that notice of such certification has been provided to the Internal Revenue Service in accordance with Treasury Regulations Section 1.897-2(h)(2), certifying that no interest in the Company is a U.S. real property interest, as defined in Section 897 of the Code.

 

8.6 Equity Incentive Plan. Prior to the Effective Time, Parent shall adopt a new equity incentive plan in a form and substance reasonably acceptable to Parent and the Company (the “Parent Equity Incentive Plan”), effective as of the Closing Date, subject to the Parent Stockholder Approval. Prior to the Effective Time, Parent shall approve and adopt an employee stock purchase plan in a form and substance reasonably acceptable to Parent and the Company (the “Parent Employee Stock Purchase Plan”), in the manner intended to be qualified under Section 423 of the Code and other applicable Laws, subject to the Parent Stockholder Approval. Following the Effective Time, Parent shall file an effective registration statement on Form S-8 (or other applicable form) with respect to the Parent Class A Shares issuable under the Parent Equity Incentive Plan and/or the Parent Employee Stock Purchase Plan, and Parent shall use commercially reasonable efforts to maintain the effectiveness of such registration statement(s) for so long as awards granted pursuant to the Parent Equity Incentive Plan or acquired under the Parent Employee Stock Purchase Plan remain outstanding.

 

8.7 Closing Parent RSU Grant. In connection with the Merger, Parent shall establish a pool in an aggregate amount of 3 million Parent RSUs (the “Closing Parent RSU Grants”) that will be granted to certain key employees of the Company and its Subsidiaries as designated by the Company (collectively, “Eligible Participants”), which Parent RSUs shall be granted within the thirty (30) day period following the Closing Date in accordance with Parent’s regular grant practices and subject to such vesting and other terms and conditions as set forth on Schedule 8.7 and other terms and conditions as Parent and the Company shall mutually agree. The Closing Parent RSU Grants shall be allocated to Eligible Participants in such amounts as are determined by Company in its sole discretion following consultation with Parent.

 

8.8 Transaction Litigation. From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, Parent, on the one hand, and the Company, on the other hand, shall each notify the other promptly after learning of any stockholder demand (or threat thereof) or other stockholder claim, action, suit, audit, examination, arbitration, mediation, inquiry, Action, or investigation, whether or not before any Authority (including derivative claims), relating to this Agreement, or any of the transactions contemplated hereby (collectively, “Transaction Litigation”) commenced or to the Knowledge of Parent or the Company, as applicable, threatened in writing against (x) in the case of Parent, Parent, any of Parent’s controlled Affiliates or any of their respective officers, directors, employees or stockholders (in their capacity as such) or (y) in the case of the Company, the Company, any of the Company’s Subsidiaries or controlled Affiliates or any of their respective officers, directors, employees or stockholders (in their capacity as such). Parent and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation and (iv) reasonably cooperate with each other with respect to any Transaction Litigation; provided, however, that in no event shall (x) the Company, any of the Company’s Affiliates or any of their respective officers, directors or employees settle or compromise any Transaction Litigation without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed) or (y) Parent, any of Parent’s Affiliates or any of their respective officers, directors or employees settle or compromise any Transaction Litigation without the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed).

 

 

8.9 Amendment to Parent Bylaws.  On the Closing Date, Parent shall amend and restate, effective as of immediately prior to the Effective Time, its bylaws, in the form of the Parent A&R Bylaws.

 

ARTICLE IX

CONDITIONS TO CLOSING

 

9.1 Condition to the Obligations of the Parties. The obligations of all of the parties to consummate the Merger are subject to the satisfaction of all the following conditions:

 

(a) No provisions of any applicable Law and no Order shall restrain or prohibit or impose any condition on the consummation of the Transactions.

 

(b) Parent shall not have received valid redemption requests to redeem the Parent Class A Shares in an amount that would cause Parent to have net tangible assets of less than $5,000,001 upon consummation of the Merger.

 

(c) The SEC 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 remain pending.

 

(d) The Parent Stockholder Approval shall have been duly obtained at the Parent Stockholder Meeting.

 

(e) The Company Stockholder Approval shall have been obtained.

 

(f) The Amended and Restated Certificate of Incorporation of Parent, in the form attached hereto as Exhibit G, shall have been filed with, and declared effective by, the Delaware Secretary of State, and Parent shall have adopted the Parent A&R Bylaws.

 

(g) The size and composition of the post-Closing Parent Board of Directors shall have been appointed as set forth in Section 2.7.

 

(h) Parent’s initial listing application with Nasdaq in connection with the transactions contemplated by this Agreement shall have been conditionally approved and, immediately following the Effective Time, Parent shall satisfy any applicable initial and continuing listing requirements of Nasdaq, and Parent shall not have received any notice of non-compliance therewith, and the Consideration Shares shall have been approved for listing on Nasdaq.

 

(i) The CFIUS Approval shall have been obtained.

 

(j) The Aggregate Transaction Proceeds shall be equal to or greater than $150,000,000.00.

 

(k) The waiting period (and any extension thereof) applicable to the transactions contemplated hereby under the HSR Act shall have expired or shall have been terminated.

 

9.2 Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, of all the following further conditions:

 

(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations hereunder required to be performed or complied with by the Company at or prior to the Closing Date.

 

 

(b) (i) The Company Fundamental Representations (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall be true and correct at and as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), in all material respects, (ii) the other representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall be true and correct at and as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect.

 

(c) No Material Adverse Effect shall have occurred between the date of this Agreement and the Closing Date.

 

(d) Parent shall have received a certificate signed by the Chief Executive Officer or the Chief Financial Officer certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2 (the “Company Certificate”).

 

(e) Parent shall have received a certificate signed by the Secretary of the Company attaching true and correct copies of (i) the Company Certificate of Incorporation and by-laws, certified as of a recent date by the Secretary of State of the State of Delaware; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Stockholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date by the Secretary of State of the State of Delaware.

 

(f)   The Company and the Specified Company Securityholders shall have duly executed and delivered to Parent a copy of the Registration Rights Agreement.

 

9.3 Conditions to Obligations of the Company. The obligations of the Company to consummate the Merger is subject to the satisfaction, or the waiver in the Company’s sole and absolute discretion, of all of the following further conditions:

 

(a) Parent and Merger Sub shall each have duly performed or complied with, in all material respects, all of its respective obligations hereunder required to be performed or complied with by Parent or Merger Sub, as applicable, at or prior to the Closing Date.

 

(b) (i) The Parent Fundamental Representations (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall be true and correct at and as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), in all material respects, (ii) the other representations and warranties of Parent and Merger Sub contained in this Agreement (disregarding all qualifications contained therein relating to materiality or Material Adverse Effect) shall be true and correct as of the date of this Agreement and as of the Closing Date, as if made at and as of such date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct at and as of such earlier date), except for any failure of such representations and warranties which would not in the aggregate reasonably be expected to have a Material Adverse Effect on Parent or on Parent’s ability to consummate the transactions contemplated by this Agreement and the Additional Agreements.

 

(c) The Company shall have received a certificate signed by an authorized officer of Parent certifying the accuracy of the provisions of the foregoing clauses (a) and (b) of this Section 9.3.

 

 

(d) Sponsor shall have executed and delivered to the Company a copy of the Registration Rights Agreement.

 

ARTICLE X

TERMINATION

 

10.1 Termination Without Default.

 

(a) In the event that (i) the Closing of the transactions contemplated hereunder has not occurred by June 30, 2022 (the “Outside Closing Date”); and (ii) the party (i.e., Parent or the Merger Sub, on one hand, or the Company, on the other hand) seeking to terminate this Agreement is not in material breach of this Agreement, then Parent or the Company, as applicable, shall have the right, at its sole option, to terminate this Agreement. Such right may be exercised by Parent or the Company, as the case may be, giving written notice to the other at any time after the Outside Closing Date.

 

(b) In the event (i) an Authority shall have issued an Order, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger, which Order is final and non-appealable or (ii) any applicable Law is in effect making the consummation of the Merger illegal, Parent or the Company shall have the right, at its sole option, to terminate this Agreement.

 

(c) In the event that (i) the Parent Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the Parent Stockholder Meeting duly convened therefor or at any postponement or adjournment thereof, Parent or the Company shall have the right, at its sole option, to terminate this Agreement, or (ii) at any time following the Parent Stockholder Meeting, the Aggregate Transaction Proceeds, giving effect to requested redemptions of Parent Class A Shares as of such time, would not be equal to or greater than $150,000,000, Parent or the Company shall have the right, at its sole option, to terminate this Agreement.

 

10.2 Termination Upon Default.

 

(a) Parent may terminate this Agreement by giving notice to the Company at any time prior to the Closing, without prejudice to any rights or obligations Parent or Merger Sub may have, if: (i) (x) the Company shall have breached any representation, warranty, agreement or covenant contained herein such that the conditions set forth in Section 9.2 would not be satisfied and (y) such breach cannot be cured, the Company is not promptly using reasonable best efforts to cure such breach or such breach is not be cured by the earlier of the Outside Closing Date and thirty (30) days following receipt by the Company of a written notice from Parent describing in reasonable detail the nature of such breach; or (ii) evidence that the Company Stockholder Written Consent was obtained is not delivered to Parent by the Company Stockholder Written Consent Deadline (provided that Parent shall not be permitted to terminate this Agreement under this Section 10.2(a)(ii) at any time (A) prior to the Company Stockholder Written Consent Deadline or (B) after such evidence has been delivered to Parent).

 

(b) The Company may terminate this Agreement by giving notice to Parent at any time prior to the Closing, without prejudice to any rights or obligations the Company may have, if: (i) Parent shall have breached any of its covenants, agreements, representations, and warranties contained herein, such that the conditions set forth in Section 9.3 would not be satisfied; and (ii) such breach cannot be cured, Parent is not promptly using reasonable best efforts to cure such breach or such breach is not be cured by the earlier of the Outside Closing Date and thirty (30) days following receipt by Parent of a written notice from the Company describing in reasonable detail the nature of such breach.

 

10.3 Effect of Termination. If this Agreement is terminated pursuant to this Article X, this Agreement shall become void and be of no further force or effect, without any liability on the part of any party (or any stockholder, director, officer, employee, Affiliate, agent, consultant or Representative of such party) to the other party hereto or any other Person; provided that, no such termination shall relieve any party from liability incurred as a result of the willful breach by such party of this Agreement or such party’s fraud, in which case such party shall be fully liable for any and all liabilities and damages incurred or suffered by the other party as a result of such breach or fraud. The provisions of Section 8.2, this Section 10.3 and Article XI shall survive any termination hereof pursuant to this Article X. The Persons named in this Section 10.3 are intended third party beneficiaries of this Section 10.3.

 

 

ARTICLE XI

MISCELLANEOUS

 

11.1  Non-Survival of Representations, Warranties and Covenants. Except (x) as otherwise contemplated by Section 10.3, or (y) in the case of claims against a Person in respect of such Person’s actual fraud, all 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 not survive the Closing and shall terminate and expire upon the occurrence of the Closing Date (and there shall be no liability after 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 XI.

 

11.2 Notices. Any notice hereunder shall be sent in writing, addressed as specified below, and shall be deemed given: (a) if by hand, electronic mail or recognized courier service, by 5:00 PM on a Business Day, addressee’s day and time, on the date of delivery, and otherwise on the first Business Day after such delivery; (b) if by fax, on the date that transmission is confirmed electronically, if by 5:00 PM on a Business Day, addressee’s day and time, and otherwise on the first Business Day after the date of such confirmation; (c) if by email, on the date of transmission; or (d) five (5) days after mailing by certified or registered mail, return receipt requested. Notices shall be addressed to the respective parties as follows (excluding telephone numbers, which are for convenience only), or to such other address as a party shall specify to the others in accordance with these notice provisions:

 

if to the Company (or, following the Closing, the Surviving Corporation or Parent), to:

 

The Tomorrow Companies Inc.
9 Channel Center Street, 7^th Floor
Boston, MA 02127
Attn: Chief Executive Officer
E-mail: ####

 

with a copy (which shall not constitute notice) to:

 

Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
Attention: William J. Schnoor
Paul R. Rosie
E-mail: [email protected]
[email protected]

 

if to Parent or Merger Sub:

 

Pine Technology Acquisition Corp.

260 Lena Drive

Aurora, OH 44202

Attention: Adam Karkowsky

E-mail: [email protected]

 

with a copy (which shall not constitute notice) to:

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Attention: Adam M. Givertz
E-mail: [email protected]

 

 

11.3 Amendments; No Waivers; Remedies.

 

(a) This Agreement cannot be amended, except by a writing signed by each party, and cannot be terminated orally or by course of conduct. No provision hereof can be waived, except by a writing signed by the party against whom such waiver is to be enforced, and any such waiver shall apply only in the particular instance in which such waiver shall have been given.

 

(b) Neither any failure or delay in exercising any right or remedy hereunder or in requiring satisfaction of any condition herein nor any course of dealing shall constitute a waiver of or prevent any party from enforcing any right or remedy or from requiring satisfaction of any condition. No notice to or demand on a party waives or otherwise affects any obligation of that party or impairs any right of the party giving such notice or making such demand, including any right to take any action without notice or demand not otherwise required by this Agreement. No exercise of any right or remedy with respect to a breach of this Agreement shall preclude exercise of any other right or remedy, as appropriate to make the aggrieved party whole with respect to such breach, or subsequent exercise of any right or remedy with respect to any other breach.

 

(c) Except as otherwise expressly provided herein, no statement herein of any right or remedy shall impair any other right or remedy stated herein or that otherwise may be available.

 

11.4 Arm’s Length Bargaining; No Presumption Against Drafter. This Agreement has been negotiated at arm’s-length by parties of equal bargaining strength, each represented by counsel and having participated in the drafting of this Agreement. This Agreement creates no fiduciary or other special relationship between the parties, and no such relationship otherwise exists. No presumption in favor of or against any party in the construction or interpretation of this Agreement or any provision hereof shall be made based upon which Person might have drafted this Agreement or such provision.

 

11.5 Publicity. Except as required by law or applicable stock exchange rules and except with respect to the Additional Parent SEC Documents, the parties agree that neither they nor their agents shall issue any press release or make any other public disclosure concerning the transactions contemplated hereunder without the prior approval of the other party hereto. If a party is required to make such a disclosure as required by law or applicable stock exchange rules, the party making such determination will, if practicable in the circumstances, use reasonable commercial efforts to allow the other party reasonable time to comment on such disclosure in advance of its issuance.

 

11.6 Expenses. If the Closing does not take place, each party shall be responsible for its own expenses; provided that Parent and the Company shall each pay fifty percent (50%) of any SEC filing fees, HSR Act filing fees and the cost of printing and mailing the Proxy Statement.

 

11.7 No Assignment or Delegation. No party may assign any right or delegate any obligation hereunder, including by merger, consolidation, operation of law or otherwise, without the written consent of the other party. Any purported assignment or delegation without such consent shall be void, in addition to constituting a material breach of this Agreement.

 

11.8 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without giving effect to the conflict of laws principles thereof that would result in the application of the laws of another jurisdiction.

 

11.9 Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement. This Agreement shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of original, photocopied, or electronically transmitted (including scanned.pdf image) signature pages that together (but need not individually) bear the signatures of all other parties.

 

11.10 Entire Agreement. This Agreement, together with the Additional Agreements, sets forth the entire agreement of the parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous understandings and agreements related thereto (whether written or oral), all of which are merged herein. No provision of this Agreement or any Additional Agreement may be explained or qualified by any agreement, negotiations, understanding, discussion, conduct or course of conduct or by any trade usage. Except as otherwise expressly stated herein or in any Additional Agreement, there is no condition precedent to the effectiveness of any provision hereof or thereof.

 

11.11 Severability. A determination by a court or other legal authority that any provision that is not of the essence of this Agreement is legally invalid shall not affect the validity or enforceability of any other provision hereof. The parties shall cooperate in good faith to substitute (or cause such court or other legal authority to substitute) for any provision so held to be invalid a valid provision, as alike in substance to such invalid provision as is lawful.

 

11.12 Further Assurances. Each party shall execute and deliver such documents and take such action, as may reasonably be considered within the scope of such party’s obligations hereunder, necessary to effectuate the transactions contemplated by this Agreement.

 

 

11.13 Third Party Beneficiaries. Except as provided in Section 8.3, Section 10.3 and Section 11.17, neither this Agreement nor any provision hereof confers any benefit or right upon or may be enforced by any Person not a signatory hereto.

 

11.14 Waiver. Reference is made to the final prospectus of Parent, dated March 10, 2021 (the “Prospectus”). The Company has read the Prospectus and understands that Parent has established the Trust Account for the benefit of the public shareholders of Parent and the underwriters of the IPO pursuant to the Trust Agreement and that, except for a portion of the interest earned on the amounts held in the Trust Account, Parent may disburse monies from the Trust Account only for the purposes set forth in the Trust Agreement. For and in consideration of Parent agreeing to enter into this Agreement, the Company hereby agrees that (i) it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account, except for redemption and liquidation rights, if any, the Company may have in respect of any Parent Class A Shares held by it or the release of proceeds from the Trust Account upon consummation of the Merger, and (ii) it will have no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or any monies in, the Trust Account that it may have now or in the future, except for redemption and liquidation rights, if any, the Company may have in respect of any Parent Class A Shares held by it or the release of proceeds from the Trust Account upon consummation of the Merger; provided, that (x) nothing herein shall serve to limit or prohibit the Company’s right to pursue a claim against Parent for legal relief against monies or other assets outside the Trust Account, for specific performance or other equitable relief in connection with the consummation of the transactions (including a claim for Parent to specifically perform its obligations under this Agreement and cause the disbursement of the balance of the cash remaining in the Trust Account) and (y) nothing herein shall serve to limit or prohibit any claims that the Company may have in the future against Parent’s assets or funds that are not held in the Trust Account. The Company acknowledges and agrees that this Section 11.14 is material to this Agreement and has been specifically relied upon by Parent to induce Parent to enter into this Agreement, and the Company further intends and understands this Section 11.14 to be valid, binding and enforceable under applicable Law. In the event the Company commences any action or proceeding which seeks, in whole or in part, relief against the funds held in the Trust Account in breach of this Agreement, the Company will be obligated to pay to Parent all of its legal fees and costs in connection with any such action in the event Parent prevails in such action or proceeding.

 

11.15 Jurisdiction; Waiver of Jury Trial.

 

(a) Any proceeding or 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 it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each of the parties irrevocably and unconditionally (i) consents and submits to the exclusive jurisdiction of each such court in any such proceeding or 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 proceeding or Action shall be heard and determined only in any such court, and (iv) agrees not to bring any proceeding or 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 Action or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Action, suit or proceeding brought pursuant to this Section 11.15.

 

(b)  EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

11.16  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 or in equity. In the event that any Action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.

 

11.17 Non-Recourse. Except in the case of fraud, this Agreement may be enforced only against, and any dispute, claim or controversy based upon, arising out of or related to this Agreement or the transactions contemplated hereby may be brought only against, the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth in this Agreement with respect to such party. Except in the case of fraud, no past, present or future director, officer, employee, incorporator, member, partner, stockholder, agent, attorney, advisor, lender or Representative or Affiliate of any named party to this Agreement (which Persons are intended third party beneficiaries of this Section 11.17) shall have any liability (whether in contract or tort, at law or in equity or otherwise, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of such named party or for any dispute, claim or controversy based on, arising out of, or related to this Agreement or the transactions contemplated hereby.

 

 

11.18 No Other Representations; No Reliance.

 

(a)  NONE OF THE COMPANY, ANY COMPANY SECURITYHOLDER NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES HAS MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER RELATING TO THE COMPANY OR THE BUSINESS OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY ADDITIONAL AGREEMENT, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE IV, IN EACH CASE, AS MODIFIED BY THE SCHEDULES TO THIS AGREEMENT. Without limiting the generality of the foregoing, neither the Company, any Company Securityholder nor any of their respective representatives has made, and shall not be deemed to have made, any representations or warranties in the materials relating to the Company made available to Parent and its representatives, including due diligence materials, or in any presentation of the business of the Company by management of the Company or others in connection with the transactions contemplated hereby, and no statement contained in any of such materials or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise or deemed to be relied upon by Parent or Merger Sub in executing, delivering and performing this Agreement, the Additional Agreements or the transactions contemplated hereby or thereby, in each case except for the representations and warranties set forth in Article IV as modified by the Schedules to this Agreement. It is understood that any cost estimates, projections or other predictions, any data, any financial information or any memoranda or offering materials or presentations, including any offering memorandum or similar materials made available by the Company, any Company Securityholder or their respective representatives are not and shall not be deemed to be or to include representations or warranties of the Company or any Company Securityholder, and are not and shall not be deemed to be relied upon by Parent or Merger Sub in executing, delivering and performing this Agreement, the Additional Agreement and the transactions contemplated hereby or thereby, in each case except for the representations and warranties set forth in Article IV, in each case, as modified by the Schedules to this Agreement. Except for the specific representations and warranties expressly made by the Company in Article IV, in each case as modified by the Schedules: (a) Parent acknowledges and agrees that: (i) neither the Company, the Company Securityholders nor any of their respective representatives is making or has made any representation or warranty, express or implied, at law or in equity, in respect of the Company, the business, assets, liabilities, operations, prospects or condition (financial or otherwise) of the Company, the nature or extent of any liabilities of the Company, the effectiveness or the success of any operations of the Company or the accuracy or completeness of any confidential information memoranda, projections, forecasts or estimates of earnings, or other information (financial or otherwise) regarding the Company furnished to Parent, Merger Sub or their respective representatives or made available to Parent and its representatives in any “data rooms,” “virtual data rooms,” management presentations or any other form in expectation of, or in connection with, the transactions contemplated hereby, or in respect of any other matter or thing whatsoever; and (ii) no representative of any Company Securityholder or the Company has any authority, express or implied, to make any representations, warranties or agreements not specifically set forth in Article IV and subject to the limited remedies herein provided; (b) Parent specifically disclaims that it is relying upon or has relied upon any such other representations or warranties that may have been made by any Person, and acknowledges and agrees that the Company Securityholders and the Company have specifically disclaimed and do hereby specifically disclaim any such other representation or warranty made by any Person; and (c) none of the Company, the Company Securityholders nor any other Person shall have any liability to Parent or any other Person with respect to any such other representations or warranties, including projections, forecasts, estimates, plans or budgets of future revenue, expenses or expenditures, future results of operations, future cash flows or the future financial condition of the Company or the future business, operations or affairs of the Company.

 

(b) NONE OF THE PARENT PARTIES, ANY SECURITYHOLDER OF THE PARENT PARTIES NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES HAS MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER RELATING TO THE PARENT PARTIES OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY ADDITIONAL AGREEMENT, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE V, IN EACH CASE, AS MODIFIED BY THE SCHEDULES TO THIS AGREEMENT. Except for the specific representations and warranties expressly made by the Parent Parties in Article V, in each case as modified by the Schedules: (a) the Company acknowledges and agrees that: (i) neither the Parent Parties, any securityholder of the Parent Parties nor any of their respective representatives is making or has made any representation or warranty, express or implied, at law or in equity, in respect of the Parent Parties, the business, assets, liabilities, operations, prospects or condition (financial or otherwise) of the Parent Parties, the nature or extent of any liabilities of the Parent Parties, or other information (financial or otherwise) regarding the Parent Parties furnished to the Company or its representatives or made available to the Company and its representatives in any presentations or any other form in expectation of, or in connection with, the transactions contemplated hereby, or in respect of any other matter or thing whatsoever; and (ii) no representative of any securityholder of the Parent Parties or the Parent Parties has any authority, express or implied, to make any representations, warranties or agreements not specifically set forth in Article V and subject to the limited remedies herein provided; (b) the Company specifically disclaims that it is relying upon or has relied upon any such other representations or warranties that may have been made by any Person, and acknowledges and agrees that the securityholders of the Parent Parties and the Parent Parties have specifically disclaimed and do hereby specifically disclaim any such other representation or warranty made by any Person; and (c) none of the Parent Parties, any securityholder of the Parent Parties nor any other Person shall have any liability to the Company or any other Person with respect to any such other representations or warranties.

 

[The remainder of this page intentionally left blank; signature pages to follow]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

 

	Parent:
	PINE TECHNOLOGY ACQUISITION CORP.
	By:	/s/ Christopher Longo
		Name:	Christopher Longo
		Title:	Chief Executive Officer

 

 

	Merger Sub:
	PINE TECHNOLOGY MERGER CORP.
	By:	/s/ Adam Karkowsky
		Name:	Adam Karkowsky
		Title:	President

 

 

	Company:
	THE TOMORROW COMPANIES INC.
	By:	/s/ Shimon Elkabetz
		Name:	Shimon Elkabetz
		Title:	Chief Executive Officer

 

Signature Page to Agreement and Plan of Merger

 

  

Exhibit A

 

Form of Company Support Agreement

 

 

 

Exhibit B

 

Form of Subscription Agreement

 

 

 

Exhibit C

 

Form of Parent Support Agreement

 

 

 

Exhibit D

 

Form of Lockup Agreement

 

 

 

Exhibit E

 

Registration Rights Agreement

 

 

 

Exhibit F

 

Amended and Restated Bylaws of Parent

 

 

 

Exhibit G

 

Form of Amended and Restated Certificate of Incorporation of Parent

 

 

G-1

Exhibit 10.1

 

SUBSCRIPTION AGREEMENT

 

This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”), dated December 7, 2021, is entered into by and between Pine Technology Acquisition Corp., a Delaware corporation (the “Company”), and the undersigned subscriber (the “Subscriber”). Defined terms used but not otherwise defined herein shall have the respective meanings ascribed thereto in the Transaction Agreement (as defined below).

 

WHEREAS, in connection with the proposed business combination (the “Transaction”) by and among the Company, The Tomorrow Companies Inc., a Delaware corporation (“Tomorrow”), and Pine Technology Merger Corp., a Delaware corporation and a wholly-owned subsidiary of the Company (“Merger Sub”), which will be made pursuant to an Agreement and Plan of Merger (as amended, modified, supplemented or waived from time to time in accordance with its terms, the “Transaction Agreement”), the undersigned desires to subscribe for and purchase from the Company, and the Company desires to sell to the undersigned, that number of shares of the Company’s Class A Common Stock, par value $0.0001 per share (the “Class A Common Stock”), set forth on the signature page hereof for a purchase price of $10.00 per share (the “Per Share Price,” and the aggregate of such Per Share Price for all Shares subscribed for by the undersigned being referred to herein as the “Purchase Price”), on the terms and subject to the conditions contained herein; and

 

WHEREAS, in connection with the Transaction, certain other institutional “accredited investors” (as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)) have entered into separate subscription agreements with the Company (the “Other Subscription Agreements”), pursuant to which such other investors have, together with the undersigned, pursuant to this Subscription Agreement and the Other Subscription Agreements, agreed to purchase an aggregate of at least 7,500,000 shares of Class A Common Stock at the Per Share Price (such other investors, the “Other Subscribers”).

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

1. Subscription. Subject to the immediately succeeding paragraph, the undersigned hereby irrevocably subscribes for and agrees to purchase from the Company, and the Company hereby agrees to issue and sell to the undersigned upon payment of the Purchase Price, the number of shares of Class A Common Stock set forth on the signature page of this Subscription Agreement (the “Shares”) on the terms and subject to the conditions provided for herein (the “Subscription”). The undersigned understands and agrees that the Company reserves the right to accept or reject the undersigned’s Subscription for the Shares for any reason or for no reason, in whole or in part, at any time prior to its acceptance by the Company, and the same shall be deemed to be accepted by the Company only when this Subscription Agreement is signed by a duly authorized person by or on behalf of the Company; the Company may do so in counterpart form. In the event of rejection of the entire Subscription by the Company or the termination of this Subscription Agreement in accordance with the terms hereof, the undersigned’s payment hereunder (to the extent any payment has been made pursuant to Section 2) will be returned promptly to the undersigned along with this Subscription Agreement, and this Subscription Agreement shall have no force or effect.

 

 

2. Closing. The closing of the Subscription contemplated hereby (the “Subscription Closing”) is contingent upon the substantially concurrent consummation of the Transaction (the “Transaction Closing”). The Subscription Closing shall occur on the date of the Transaction Closing (the “Transaction Closing Date”) and substantially concurrently with the consummation of the Transaction Closing. Not less than five business days prior to the scheduled Transaction Closing Date, the Company shall provide written notice to the undersigned (the “Closing Notice”) (i) of such scheduled Transaction Closing Date, (ii) that the Company reasonably expects all conditions to the closing of the Transaction to be satisfied or waived and (iii) containing wire instructions for the payment of the Purchase Price. The undersigned hereby acknowledges and agrees that if the conditions to closing set forth in the Transaction Agreement have been satisfied or waived then the Company’s representations and warranties in paragraphs (e), (f), (j) and (k) of Section 5 shall be deemed to be true and correct in all respects for all purposes of this Agreement as of the date hereof and as of the Transaction Closing Date. The undersigned shall deliver to the Company, at least two business days prior to the Transaction Closing Date specified in the Closing Notice, the Purchase Price, to be held in escrow until the Subscription Closing, by wire transfer of U.S. dollars in immediately available funds to the account specified by the Company in the Closing Notice. On the Transaction Closing Date, the Purchase Price may be released by the Company from escrow, the Company shall confirm to the undersigned in writing (it being understood that an email confirmation is sufficient) that all conditions to the Transaction Closing have been satisfied or waived and deliver to the undersigned the Shares in book-entry form, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws or as set forth herein or in any other agreement between the Company and the undersigned), in the name of the undersigned (or its nominee in accordance with its delivery instructions) or to a custodian designated by the undersigned, as applicable. For purposes of this Subscription Agreement, “business day” shall mean any day other than Saturday, Sunday or such other days on which banks located in New York, New York are required or authorized by applicable law to be closed for business.

 

If the Transaction Closing does not occur within ten business days of the Transaction Closing Date specified in the Closing Notice, the Company shall promptly (but not later than ten business days thereafter) return the Purchase Price (to the extent paid by the undersigned to the Company pursuant to this Section 2) by wire transfer of U.S. dollars in immediately available funds to the account specified by the undersigned. Furthermore, if the Transaction Closing does not occur on the same day as the Subscription Closing, the Company shall promptly (but not later than ten business days thereafter) return the Purchase Price (to the extent paid by the undersigned to the Company pursuant to this Section 2) to the undersigned by wire transfer of U.S. dollars in immediately available funds to the account specified by the undersigned, and any book-entries (to the extent delivered by the Company to the undersigned pursuant to this Section 2) shall be deemed cancelled.

 

 

Each book-entry for the Shares shall contain a notation, and each certificate (if any) evidencing the Shares shall be stamped or otherwise imprinted with a legend, in substantially the following form:

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.

 

3. Closing Conditions.

 

a. The obligations of the Company to consummate the transactions contemplated hereunder are subject to the satisfaction (or valid waiver by the Company in writing) of the conditions that, at the Subscription Closing:

 

i

all representations and warranties of the undersigned contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the Subscription Closing, and consummation of the Subscription Closing shall constitute a reaffirmation by the undersigned of each of the representations, warranties and agreements of such party contained in this Subscription Agreement as of the Subscription Closing; and

 

ii

the undersigned shall have performed or complied in all material respects with all agreements and covenants required by this Subscription Agreement required or to be performed or complied with at or prior to the Subscription Closing.

 

 

b. The obligations of the undersigned to consummate the transactions contemplated hereunder are subject to the satisfaction (or valid waiver by the undersigned in writing) of the conditions that, at the Subscription Closing:

 

i

subject to Section 2, all representations and warranties of the Company contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the Subscription Closing, and consummation of the Subscription Closing shall constitute a reaffirmation by the Company of each of the representations, warranties and agreements of such party contained in this Subscription Agreement as of the Subscription Closing, but in each case without giving effect to consummation of the Transaction;

 

ii

the Company shall have performed or complied in all material respects with all agreements and covenants required by this Subscription Agreement required or to be performed or complied with at or prior to the Subscription Closing;

 

iii

the terms of the Transaction Agreement shall not have been amended or modified in a manner that would reasonably be expected to materially and adversely affect the economic benefits of the undersigned relative to the Other Subscribers without the undersigned’s prior written consent; and

 

iv

shares of Class A Common Stock to be purchased by the Other Subscribers pursuant to the Other Subscription Agreements shall be purchased at the Per Share Price.

 

c. The obligations of each of the Company and the undersigned to consummate the transactions contemplated hereunder are subject to the satisfaction (or waiver by the Company and the undersigned in writing) of the conditions that, at the Subscription Closing:

 

i

no Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law, rule, regulation, judgment, decree, executive order or award after the date hereof which is then in effect and has the effect of making the Subscription illegal or otherwise prohibiting consummation of the Subscription;

 

ii

no suspension of the qualification of the Shares for offering or sale or trading in any jurisdiction, or any proceedings for any of such purposes, shall be ongoing; and

 

iii

the Transaction shall have been or will be consummated substantially concurrently with the Subscription Closing.

 

d. Prior to or at the Subscription Closing, the undersigned shall deliver all such other information as is reasonably requested by the Company in order for the Company to issue the Shares to the undersigned.

 

 

4. IRS Form W-9; Further Assurances. At or prior to the Subscription Closing, the undersigned shall provide the Company with a properly completed and duly executed IRS Form W-9 or applicable IRS Form W-8, as appropriate. At or prior to the Subscription Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties hereto mutually and reasonably may deem to be practical and necessary in order to consummate the Subscription as contemplated by this Subscription Agreement.

 

5. Company Representations and Warranties. For purposes of this Section 5, the term “Company” shall refer to the Company as of the date hereof and, for purposes of only the representations contained in paragraphs (e), (f), (j) and (k) of this Section 5 and to the extent such representations and warranties are made as of the Transaction Closing Date, the combined company after giving effect to the Transaction. The Company represents and warrants to the undersigned that:

 

a. The Company has been duly incorporated, is validly existing and is in good standing under the laws of the State of Delaware, with the requisite corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and preform its obligation under this Subscription Agreement.

 

b. The Shares have been duly authorized and, when issued and delivered to the undersigned against full payment therefor in accordance with the terms of this Subscription Agreement, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Company’s amended and restated certificate of incorporation or under the laws of the State of Delaware.

 

c. This Subscription Agreement has been duly authorized, executed and delivered by the Company and is the valid, legal and binding obligation of and enforceable against the Company 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.

 

d. The issuance and sale of the Shares and the compliance by the Company with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated hereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, or prevents, materially impairs, materially delays or materially impedes the performance of the Company of its obligation to issue the Shares in accordance with the terms of this Subscription Agreement (a “Material Adverse Effect”); (ii) the provisions of the organizational documents of the Company; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties that would have a Material Adverse Effect.

 

 

e. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other Authority or self-regulatory organization in connection with the execution, delivery and performance of this Subscription Agreement (including, without limitation, the issuance of the Shares), other than (i) filings with the Securities and Exchange Commission (the “Commission”) and filings or registrations required by applicable state securities laws; (ii) filings required by applicable state securities laws, (iii) any filings required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 or similar antitrust laws, (iv) filings required by Nasdaq Capital Market (“Nasdaq”), including with respect to obtaining Company stockholder approval, (v) consents, waivers, authorizations or filings that have been obtained or made on or prior to the Subscription Closing, (vi) any consents, authorizations or other filings, in each case, required or advisable to be filed in connection with the Transaction and (vii) where the failure of which to obtain such consents, waivers, authorizations or orders, give such notices, or to make such filings or registrations would not be reasonably likely to have a Material Adverse Effect.

 

f. The Company is in compliance with all applicable laws, except where such non-compliance would not be reasonably likely to have a Material Adverse Effect.

 

g. The issued and outstanding shares of Class A Common Stock of the Company are registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are listed for trading on Nasdaq under the symbol “PTOC” (it being understood that the trading symbol will be changed in connection with the Transaction Closing). Except as disclosed in the Company’s filings with the Commission and except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, there is no suit, action, proceeding or investigation pending or, to the knowledge of the Company, threatened against the Company by Nasdaq or the Commission, respectively, to prohibit or terminate the listing of the Company’s Class A Common Stock on Nasdaq or to deregister the Class A Common Stock under the Exchange Act. The Company has taken no action that is designed to terminate the registration of the Class A Common Stock under the Exchange Act.

 

h. A copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other document, if any, filed by the Company with the Commission since its initial registration of the Class A Common Stock under the Exchange Act (the “SEC Documents”) is available to the undersigned via the Commission’s EDGAR system. None of the SEC Documents contained, when filed or, if amended, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company makes no such representation or warranty with respect to the Proxy Statement or any other information relating to Tomorrow or any of its Affiliates included in any SEC Document or filed as an exhibit thereto. The Company has timely filed each report, statement, schedule, prospectus, and registration statement that the Company was required to file with the Commission since its initial registration of the Class A Common Stock under the Exchange Act. There are no material outstanding or unresolved comments in comment letters from the staff of the Division of Corporation Finance (the “Staff”) of the Commission with respect to any of the SEC Documents.

 

 

i. The authorized capital stock of the Company consists of (i) 300,000,000 shares of the Company’s common stock, par value $0.0001 per share, with (A) 240,000,000 shares being designated as Class A Common Stock and (B) 60,000,000 shares being designated as Class B Common Stock (“Class B Common Stock”), and (ii) 1,000,000 shares of preferred stock, par value $0.001 per share (“Preferred Stock”). As of the date of this Subscription Agreement, (i) 34,500,000 shares of Class A Common Stock and 8,625,000 shares of Class B Common Stock are issued and outstanding, all of which are validly issued, fully paid and non-assessable and not subject to any preemptive rights, (ii) no shares of the Company’s common stock are held in the treasury of the Company, (iii) 5,933,333 private placement warrants (the “Private Placement Warrants”) are issued and outstanding and 5,933,333 shares of Class A Common Stock are issuable in respect of such Private Placement Warrants, and (iv) 11,500,000 public warrants (the “Public Warrants”) are issued and outstanding and 11,500,000 shares of Class A Common Stock are issuable in respect of such Public Warrants. There are no shares of Preferred Stock issued and outstanding. Each Private Placement Warrant and Public Warrant is exercisable for one share of Class A Common Stock at an exercise price of $11.50. Other than Merger Sub, the Company has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated.

 

j. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no action, lawsuit, claim or other proceeding, in each case by or before any Authority pending, or, to the knowledge of the Company, threatened in writing against the Company. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect there is no unsatisfied judgment, consent decree, injunction, or continuing order of any Authority or arbitrator outstanding against the Company.

 

k. Neither the Company nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Shares.

 

 

6. Subscriber Representations and Warranties. The undersigned represents and warrants to the Company, as of the date of this Subscription Agreement and as of the Subscription Closing, that:

 

a. The undersigned is (i) an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act), in each case, satisfying the requirements set forth on Schedule A hereto, (ii) is acquiring its entire beneficial ownership in the Shares only for its own account for investment purposes only and not for the account of others or if the undersigned is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is an accredited investor and the undersigned has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties 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 on Schedule A hereto following the signature page hereto) or the securities laws of any other jurisdiction. The undersigned is not an entity formed for the specific purpose of acquiring the Shares.

 

b. The undersigned (i) is an institutional account as defined in FINRA Rule 4512(c) and (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 including the undersigned’s participation in the Transaction. The undersigned has determined based on its own independent review and such professional advice as the undersigned deems appropriate that the purchase of the Shares and participation in the Transaction (i) are fully consistent with the undersigned’s financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to the undersigned, (iii) have been duly authorized and approved by all necessary action, (iv) do not and will not violate or constitute a default under its charter, by-laws or other constituent document or under any law, rule, regulation, agreement or other obligation by which it is bound and (v) are a fit, proper and suitable investment, notwithstanding the substantial risks inherent in investing in or holding the Shares. The undersigned 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).

 

c. Alone, or together with any professional advisor(s), the undersigned represents and acknowledges that the undersigned 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 undersigned and that the undersigned is able at this time and in the foreseeable future to bear the economic risk of a total loss of the undersigned’s investment in the Company. The undersigned acknowledges specifically that a possibility of total loss exists.

 

d. The undersigned understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act or the securities laws of any other jurisdiction. The undersigned understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the undersigned absent an effective registration statement under the Securities Act, except (i) to the Company 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 of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book-entry positions representing the Shares shall contain a legend to such effect. The undersigned acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The undersigned understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, the undersigned may not be able to readily resell the Shares or pledge the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The undersigned understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. For the avoidance of doubt, the Shares shall not be subject to a contractual lock-up arrangement in addition to the foregoing transfer restrictions.

 

 

e. The undersigned understands and agrees that the undersigned is purchasing the Shares directly from the Company. The undersigned acknowledges and agrees that (i) none of Moelis & Company LLC (“Moelis”) or PJT Partners LP (“PJT” and together with Moelis in their respective capacities as placement agents with respect to the issuance and sale of the Shares pursuant to this Subscription Agreement and the Other Subscription Agreements, the “Placement Agents”), or any affiliate of the Placement Agents (nor any control person, officer, director, employee, partner, agent or representative of any of the Placement Agents or any affiliate thereof), has provided, or will provide, the undersigned with any information or advice with respect to the Shares nor is such information or advice necessary or desired and (ii) none of the Placement Agents nor any of their respective affiliates (nor any control person, officer, director, employee, partner, agent or representative of any of the Placement Agents or any affiliate thereof) has provided, or will provide, the undersigned with any disclosure or offering document in connection with the offer and sale of the Shares. None of the Placement Agents or any of their respective affiliates (nor any control person, officer, director, employee, partner, agent or representative of any of the Placement Agents or any affiliate thereof) has made or makes any representation as to the Company, Tomorrow, the Transaction or the quality or value of the Shares and the Placement Agents and any of their respective affiliates may have acquired non-public information with respect to the Company or Tomorrow which the undersigned agrees need not be provided to them. However, neither any inquiries, nor any due diligence investigation conducted by the undersigned or any of the undersigned’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the undersigned’s right to rely on the Company’s representations, warranties, covenants and agreements contained in this Subscription Agreement. In connection with the issuance of the Shares to the undersigned, the Placement Agents are acting solely as placement agents and are not acting as underwriters or in any other capacity and none of the Placement Agents or any of their respective affiliates (or any control person, officer, director, employee, partner, agent or representative of any of the Placement Agents or any affiliate thereof) has acted (or shall be construed) as a financial advisor or fiduciary for the undersigned, the Company or any other person or entity except that PJT is acting as financial advisor to Tomorrow in connection with the Transaction and Moelis is acting as financial advisor to the Company in connection with the Transaction. The undersigned acknowledges and agrees that the Placement Agents and their respective affiliates have not made an independent investigation with respect to the Company, Tomorrow or the Shares or the accuracy, completeness or adequacy of any information supplied to the undersigned in connection with the Subscription. The undersigned agrees that none of the Placement Agents or any of their respective affiliates (nor any control person, officer, director, employee, partner, agent or representative of any of the Placement Agents or any affiliate thereof) will have (a) any responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction, or (b) any liability or obligation (including, without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the undersigned, the Company or any other person or entity), whether in contract, tort or otherwise, to the undersigned or any subscriber, or to any person claiming through the undersigned or any subscriber, for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the undersigned’s purchase of the Shares or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind concerning the Company, Tomorrow, the Placement Agents, any of their controlled affiliates or any family member of the foregoing, this Subscription Agreement or the transactions contemplated hereby.

 

 

f. The undersigned understands and agrees that the undersigned is purchasing the Shares directly from the Company. The undersigned further acknowledges that there have been no representations, warranties, covenants and agreements made to the undersigned by the Company, its officers or directors, or any other party to the Transaction or person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement.

 

g. Either (i) the undersigned is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) the undersigned’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.

 

h. The undersigned is not currently (and at all times through Subscription Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).

 

 

i. The undersigned acknowledges and agrees that the undersigned has received and has had an adequate opportunity to review, such financial and other information as the undersigned deems necessary in order to make an investment decision with respect to the Shares and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the undersigned’s investment in the Shares. Without limiting the generality of the foregoing, the undersigned acknowledges that it has received, reviewed and understood the documents provided to the undersigned in connection with the Transaction. The undersigned represents and agrees that the undersigned and the undersigned’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers, and conducted and completed their own independent due diligence with respect to the Transaction and obtain such information as the undersigned and such undersigned’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Based on such information as the undersigned has deemed appropriate and without reliance upon the Placement Agents, the undersigned has independently made its own analysis and decision to enter into the transactions contemplated by this Subscription Agreement. Except for the representations, warranties and agreements of the Company expressly set forth in the Subscription Agreement, the undersigned is relying exclusively on their own sources of information, investment analysis and due diligence (including professional advice the undersigned deems appropriate) with respect to the transactions contemplated by this Subscription Agreement, the Transaction, the Shares, and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. The undersigned has not relied on any statements, representations or warranties or other information provided by the Placement Agents or any of their respective affiliates or control persons or any of their respective officers, directors, employees or representatives, in making its investment or decision to invest in the Company.

 

j. The undersigned became aware of this offering of the Shares solely by means of direct contact between the undersigned and the Company or a representative of the Company or the Placement Agents on behalf of the Company, and the Shares were offered to the undersigned solely by direct contact between the undersigned and the Company or a representative of the Company. The undersigned did not become aware of this offering of the Shares, nor were the Shares offered to the undersigned, by any other means. The undersigned acknowledges that the Company represents and warrants 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.

 

k. The undersigned acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. The undersigned is able to fend for himself, herself or itself in the transactions completed herein, 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 has the ability to bear the substantial economic risks of such investment in the Shares and can afford a complete loss of such investment. The undersigned has sought such accounting, legal and tax advice as the undersigned has considered necessary to make an informed investment decision. The undersigned 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).

 

 

l. The undersigned understands 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.

 

m. If an entity, the undersigned is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.

 

n. The execution, delivery and performance by the undersigned of this Subscription Agreement are within the powers of the undersigned and have been duly authorized and the consummation of the transactions contemplated hereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the undersigned pursuant to the terms of (i) any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency or any agreement or other undertaking or pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the undersigned is a party or by which the undersigned is bound or to which any of the property or assets of the undersigned is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the undersigned or the legal authority of the undersigned to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) the provisions of the organizational documents of the undersigned; or (iii) any statute or any judgment, order, rule or regulation of any Authority having jurisdiction over the undersigned or any of its properties that would have a Subscriber Material Adverse Effect. The undersigned’s signatory has legal competence and capacity to execute the same and has been duly authorized by the undersigned to execute the same on behalf of the undersigned, and this Subscription Agreement constitutes a legal, valid and binding obligation of the undersigned, enforceable against the undersigned 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.

 

o. The undersigned and its directors and officers are not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List as administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”) sanctions lists, or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, (iii) or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). The undersigned 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. If the undersigned is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the undersigned maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the undersigned and used to purchase the Shares were legally derived.

 

 

p. The undersigned, their directors, and officers are not aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the undersigned and, to the knowledge of the undersigned, its Affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

q. The operations of the undersigned are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Authority (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Authority involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

 

r. No disclosure or offering document has been prepared by the Placement Agents or any of their respective Affiliates in connection with the offer and sale of the Shares.

 

s. The undersigned represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to the undersigned or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. The undersigned hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to the undersigned or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section (s), “Rule 506(d) Related Party” shall mean a person or entity that is a beneficial owner of the undersigned’s securities for purposes of Rule 506(d) under the Securities Act.

 

 

t. The undersigned has or has enforceable commitments to have, and at least two business days prior to the Transaction Closing Date will have, sufficient funds to pay the Purchase Price and consummate the Subscription Closing, in each case, when required pursuant to this Subscription Agreement.

 

u. The undersigned agrees that, from the date of this Subscription Agreement until the Subscription Closing or the earlier termination of this Subscription Agreement, none of the undersigned, its controlled affiliates, or any person or entity acting on behalf of the Investor or any of its controlled affiliates or pursuant to any understanding with the Investor or any of its controlled affiliates will engage in any “short sales” with respect to the Shares; provided that nothing herein shall prohibit such persons from engaging in hedging transactions with respect to other securities of the Company, including Shares acquired in open market purchases, so long as such person does not create any “put equivalent position,” as such term is defined in Rule 16a-1 under the Exchange Act, or short sale positions, with respect to the Shares, nor shall this Subscription Agreement prohibit any other investment portfolios of the Investor that have no knowledge of this Subscription Agreement or of Investor’s participation in this transaction (including Investor’s controlled affiliates and/or affiliates) from entering into any short sales or engaging in other hedging transactions. For the purposes hereof, “short sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.

 

7. Registration Rights.

 

a. In the event that the Shares are not registered in connection with the consummation of the Transaction, the Company agrees that, within 30 calendar days after the Transaction Closing Date (the “Filing Deadline”), the Company will file with the Commission (at the Company’s sole cost and expense) a registration statement (the “Registration Statement”) registering under the Securities Act the resale of all the Shares, and the Company 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 (or 90^th calendar day if the Commission notifies the Company that it will “review” the Registration Statement) following the Filing Deadline and (ii) the 5^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 earlier date, the “Effectiveness Date”); provided, however, that the Company’s obligations to include the Shares and any other shares of Class A Common Stock held by the undersigned in the Registration Statement are contingent upon the undersigned furnishing in writing to the Company such information regarding the undersigned, the securities of the Company held by the undersigned and the intended method of disposition of the Shares as shall be reasonably requested by the Company to effect the registration of the Shares, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the Commission. Notwithstanding the foregoing, if the Commission prevents the Company from including any or all of the shares of Class A Common Stock 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 of Class A Common Stock held by the undersigned or any Other Subscriber or otherwise, such Registration Statement shall register for resale such number of shares of Class A Common Stock which is equal to the maximum number of shares of Class A Common Stock as is permitted by the Commission. In such event, the number of shares of Class A Common Stock to be registered for each selling shareholder named in the Registration Statement shall be reduced pro rata among all such selling shareholders. Until the earliest of (i) the date on which the Shares may be resold without volume or manner of sale limitations pursuant to Rule 144, (ii) the date on which such Shares have actually been sold and (iii) the date which is two years after the Subscription Closing (such date, the “End Date”), except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of the Registration Statement, the Company shall use its commercially reasonable efforts to maintain the continuous effectiveness of the Registration Statement until the End Date. For purposes of clarification, any failure by the Company to file the Registration Statement by the Filing Deadline or to have such Registration Statement declared effective by the Effectiveness Date shall not otherwise relieve the Company of its obligations to file or effect the Registration Statement set forth in this Section 7.

 

 

b. Until the End Date, the Company shall, at its expense:

 

(i) advise the undersigned within two (2) business days: (A) when a Registration Statement or any amendment thereto has been filed with the Commission and when such Registration Statement or any post-effective amendment thereto has become effective; (B) of any request by the Commission for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information; (C) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose; (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (E) 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, the Company shall not, when so advising the undersigned of such events, provide the undersigned with any material, nonpublic information regarding the Company other than to the extent that providing notice to the undersigned of the occurrence of the events listed in (A) through (E) above constitutes material, nonpublic information regarding the Company;

 

(ii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as promptly as reasonably practicable;

 

(iii) upon the occurrence of any event contemplated in Section 7(c)(i), except for such times as the Company is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Company shall use its commercially reasonable efforts to as promptly 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 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;

 

(iv) use its commercially reasonable efforts to cause all Shares to be listed on each securities exchange or market, if any, on which the shares of Class A Common Stock issued by the Company have been listed;

 

(v) use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Shares contemplated hereby; and

 

(vi) use its commercially reasonable efforts to file all reports and other materials required to be filed by the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144 to enable the undersigned to sell the Shares under Rule 144 for so long as the undersigned holds Shares.

 

 

c. Notwithstanding anything to the contrary in this Subscription Agreement, the Company shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require the undersigned not to sell under the Registration Statement or to suspend the effectiveness thereof, if the negotiation or consummation of a transaction by the Company or its subsidiaries is pending or an event has occurred, which negotiation, consummation or event, the Company’s board of directors reasonably believes would require additional disclosure by the Company in the Registration Statement of material information that the Company 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 the Company’s board of directors, to cause the Registration Statement to fail to comply with applicable disclosure requirements (each such circumstance, a “Suspension Event”); provided, however, that the Company may not delay or suspend the effectiveness or use of the Registration Statement on more than two occasions or for more than an aggregate of 60 calendar days in any one instance, or more than 90 total calendar days, in each case in any 12 month period. Upon receipt of any written notice from the Company of the happening of any Suspension Event (which notice shall not contain material non-public information) 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 undersigned agrees that (i) it will immediately discontinue offers and sales of the Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until the undersigned receives copies of a supplemental or amended prospectus (which the Company agrees to promptly prepare) 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 the Company 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 the Company unless otherwise required by law or subpoena. If so directed by the Company, the undersigned will deliver to the Company or, in the undersigned’s sole discretion destroy, all copies of the prospectus covering the Shares in the undersigned’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Shares shall not apply (i) to the extent the undersigned is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.

 

d. The undersigned may deliver written notice (an “Opt-Out Notice”) to the Company requesting that the undersigned not receive notices from the Company otherwise required by this Section 7; provided, however, that the undersigned may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from the undersigned (unless subsequently revoked), (i) the Company shall not deliver any such notices to the undersigned and the undersigned shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to the undersigned’s intended use of an effective Registration Statement, the undersigned will notify the Company 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(d)) and the related suspension period remains in effect, the Company will so notify the undersigned, within one (1) business day of the undersigned’s notification to the Company, by delivering to the undersigned a copy of such previous notice of Suspension Event, and thereafter will provide the undersigned with the related notice of the conclusion of such Suspension Event immediately upon its availability.

 

 

e. The Company shall, notwithstanding any termination of this Subscription Agreement, indemnify, defend and hold harmless the undersigned (to the extent a seller under the Registration Statement), the officers, directors, employees and agents of each of them, and each person who controls the undersigned (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the fullest extent permitted by applicable law, from and against any and all out-of-pocket losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information regarding the undersigned furnished in writing to the Company by the undersigned expressly for use therein or the undersigned has omitted a material fact from such information or otherwise violated the Securities Act, Exchange Act or any state securities law or any other law, rule or regulation thereunder; provided, however, that the indemnification contained in this Section 7 shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable for any Losses to the extent they arise out of or are based upon a violation which occurs (A) in reliance upon and in conformity with written information furnished by the undersigned, (B) in connection with any failure of such person to deliver or cause to be delivered a prospectus made available by the Company in a timely manner, (C) as a result of offers or sales effected by or on behalf of any person by means of a “free writing prospectus” (as defined in Rule 405 under the Securities Act) that was not authorized in writing by the Company, or (D) in connection with any offers or sales effected by or on behalf of the undersigned in violation of Section 7(c) hereof. The Company shall notify the undersigned promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 7 of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Shares by the undersigned.

 

f. The undersigned shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, and each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, claims, damages, liabilities and expenses, as incurred, arising out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to 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 any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or omissions are based upon information regarding the undersigned furnished in writing to the Company by the undersigned expressly for use therein; provided, however, that the indemnification contained in this Section 7 shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of the undersigned (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, in no event shall the liability of the undersigned be greater in amount than the dollar amount of the net proceeds received by the undersigned upon the sale of the Shares giving rise to such indemnification obligation. The undersigned shall notify the Company promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 7 of which the undersigned is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Shares by the undersigned.

 

 

8. Termination. Except for the provisions of Sections 8 through 10, which shall survive any termination hereunder, 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 prior to the Subscription Closing of (a) such time as the Company notifies the undersigned in writing, (b) the date and time that the Transaction Agreement is validly terminated in accordance with its terms, (c) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement, and (d) June 30, 2022 if the Transaction has not been consummated by such date; provided that, subject to the limitations set forth in Section 9, nothing herein will relieve any party hereto from liability for any willful breach hereof prior to the time of termination, and each party hereto will be entitled to any remedies at law or in equity to recover out-of-pocket losses, liabilities or damages arising from such willful breach. The Company shall promptly notify the undersigned of the termination of the Transaction Agreement promptly after the termination of such Transaction Agreement. For the avoidance of doubt, if any termination hereof occurs after the delivery by the undersigned of the Purchase Price for the Shares pursuant to Section 2 and prior to the Subscription Closing, the Company shall promptly (but not later than three business days thereafter) return the Purchase Price to the undersigned without any deduction for or on account of any tax, withholding, charges, or set-off.

 

9. Trust Account Waiver. Reference is made to the final prospectus of the Company, dated as of March 10, 2021 and filed with the Commission (the “Prospectus”). The undersigned hereby represents and warrants that it has read the Prospectus and understands that the Company has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and the overallotment shares acquired by its underwriters and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Company’s public stockholders (including overallotment shares acquired by the Company’s underwriters the “Public Stockholders”), and that, the Company may disburse monies from the Trust Account only as described in the Prospectus. For and in consideration of the Company entering into this Subscription Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby agrees on behalf of itself and its Affiliates that, notwithstanding anything to the contrary in this Subscription Agreement, neither the undersigned nor any of its Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Subscription Agreement, the Transaction Agreement or agreements contemplated hereby or thereby or any proposed or actual business relationship between the Company or its Representatives, on the one hand, and the undersigned or its Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Released Claims”). The undersigned on behalf of itself and its Affiliates hereby irrevocably waives any Released Claims that the undersigned or any of its Affiliates may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations or contracts with the Company or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of this Subscription Agreement or any other agreement with the Company or its Affiliates). The undersigned agrees and acknowledges that such irrevocable waiver is material to this Subscription Agreement and specifically relied upon by the Company and its Affiliates to induce the Company to enter in this Subscription Agreement, and the undersigned further intends and understands such waiver to be valid, binding and enforceable against the undersigned and each of its Affiliates under applicable Law. To the extent the undersigned or any of its Affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Company or its Representatives, which proceeding seeks, in whole or in part, monetary relief against the Company or its Representatives, the undersigned hereby acknowledges and agrees that the undersigned and its Affiliates’ sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit the undersigned or its Affiliates (or any person claiming on any of their behalves or in lieu of any of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. In the event the undersigned or any of its Affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Company or its Representatives, which proceeding seeks, in whole or in part, relief against the Trust Account (including any distributions therefrom) or the Public Stockholders of the Company, whether in the form of money damages or injunctive relief, the Company and its Representatives, as applicable, shall be entitled to recover from the undersigned and its Affiliates the associated legal fees and costs in connection with any such action, in the event the Company or its Representatives, as applicable, prevails in such action or proceeding. Notwithstanding anything in this Subscription Agreement to the contrary, the provisions of this paragraph shall survive indefinitely with respect to the obligations set forth in this Subscription Agreement. Notwithstanding the foregoing, nothing in this Section 9 will affect the undersigned’s rights with respect to any shares it may acquire that were issued in the IPO.

 

 

10. Miscellaneous.

 

a. The Company shall, no later than 9:00 a.m., New York City time, on the fourth business day immediately following the date of the Transaction Agreement, issue one or more press releases or file with the Commission a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby, the Transaction and any other material, nonpublic information that the Company has provided to the undersigned at any time prior to the filing of the Disclosure Document. The undersigned hereby consents to (a) the publication and disclosure of the undersigned’s identity, the undersigned’s entry into this Subscription Agreement and the Purchase Price in the Registration Statement, Proxy Statement, any Form 8-K or related materials to be filed with the Commission by the Company with respect to the Transaction or as required by law or regulation or at the request of the Staff of the Commission or regulatory agency or under the regulations of Nasdaq and (b) the filing of this Subscription Agreement (or a form of this Subscription Agreement) with the Commission. Upon the issuance of the Disclosure Document, the undersigned shall not be in possession of any material, non-public information received from the Company or any of its officers, directors, employees or agents, and the undersigned shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with Company or any of its affiliates, relating to the Transaction.

 

b. Neither this Subscription Agreement nor any rights that may accrue to the undersigned hereunder (other than the Shares acquired hereunder, if any) may be transferred or assigned without the prior written consent of the Company.

 

c. The Company may request from the undersigned such additional information as the Company may reasonably deem necessary and is required by applicable law to evaluate the eligibility of the undersigned to acquire the Shares, and the undersigned 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; provided that the Company agrees to keep confidential any such information provided by the undersigned and identified as confidential, except as may be required under applicable law.

 

d. The undersigned acknowledges that the Company and Tomorrow will rely on the acknowledgments, understandings, agreements, representations and warranties of the undersigned contained in this Subscription Agreement; provided, however, that the foregoing clause of this Section 10(d) shall not give Tomorrow any rights other than those expressly set forth herein. Each party agrees that each purchase by the undersigned of Shares from the Company will constitute a reaffirmation of its own acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such notice) as of the Subscription Closing. The Company and the undersigned further acknowledge and agree that the Placement Agents are third-party beneficiaries of the representations and warranties of the Company and the undersigned contained in Section 5 and Section 6, respectively, of this Subscription Agreement.

 

e. The Company is entitled to rely upon this Subscription Agreement and each of the Company and the Placement Agents is irrevocably authorized to produce this Subscription Agreement or a copy hereof when required by law, regulatory authority or Nasdaq to do so in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

 

f. All the agreements, representations and warranties made by the undersigned shall survive the Subscription Closing.

 

g. This Subscription Agreement may not be amended, modified or waived (i) except by an instrument in writing, signed by the party against whom enforcement of such amendment, modification or waiver is sought and (ii) without the prior written consent of the Company.

 

h. This Subscription Agreement 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 otherwise expressly set forth in Sections 7(e), 7(f), 10(d) and 10(n) hereof and this Section 10(h) with respect to the persons specifically 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 and the parties hereto acknowledge that such persons specifically referenced, including Tomorrow and the Placement Agents, are third-party beneficiaries of this Subscription Agreement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions.

 

i. 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.

 

j.  If any provision of this Subscription Agreement shall 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.

 

k. This Subscription Agreement may be executed in one or more counterparts (including by facsimile or 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.

 

l. The undersigned shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.

 

m. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed, sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (a) when so delivered personally, (b) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (c) five business days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:

 

 

i

if to the undersigned, to such address, facsimile number or email address set forth on the signature page hereto;

 

with a copy to:

 

Moelis & Company LLC

399 Park Avenue, 5^th Floor
New York, NY 10022

Attention: [_]
Email: [_]

 

PJT Partners LP

280 Park Avenue

New York, NY 10017

Attention: David Travin, General Counsel

Email: [email protected]

 

and

 

Sullivan & Cromwell LLP
1870 Embarcadero Rd

Palo Alto, CA 94303

Attention: Sarah Payne

Email: [email protected]

 

ii

if to the Company or Merger Sub (prior to the Transaction Closing), to:

 

Pine Technology Acquisition Corp.
260 Lena Drive
Aurora, OH 44202
Attention: Adam Karkowsky
E-mail: [email protected]

 

with a copy to:

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
Attention: Adam M. Givertz
Email: [email protected]

 

 

iii

if to the Company (following the Transaction Closing), to:

 

The Tomorrow Companies Inc.
9 Channel Center Street, 7^th Floor
Boston, MA 02127
Attn: Chief Executive Officer
e-mail: ####

 

with a copy to:

 

Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
Attention: William J. Schnoor
Paul R. Rosie
E-mail: [email protected]
[email protected]

 

n. The parties hereto 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 and that money damages or other legal remedies would not be an adequate remedy for any such damage. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement and 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. The right to specific enforcement shall include the right of the Company or Tomorrow to cause Subscriber and the right of the Company or the Subscriber to cause Tomorrow to cause the transactions contemplated hereby to be consummated on the terms and subject to the conditions and limitations set forth in this Subscription Agreement. The parties hereto further agree (i) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, (ii) not to assert that a remedy of specific enforcement pursuant to this Section 10(n) is unenforceable, invalid, contrary to applicable law or inequitable for any reason and (iii) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.

 

o. THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD OTHERWISE REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER STATE. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION PURSUANT TO THIS SUBSCRIPTION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.

 

[SIGNATURE PAGES FOLLOW]

 

 

IN WITNESS WHEREOF, the undersigned has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below, and hereby irrevocably subscribes for the number of Shares set forth below at the price per share set forth below.

 

Name of Subscriber:			State/Country of Formation or Domicile:
By:			___________________________
Name:
Title:
Name in which shares are to be registered (if different):			Date: _______________, 2021
			Mailing Address-Street (if different):
Subscriber’s EIN:			City, State, Zip:
Business Address-Street:			Attn:__________________
City, State, Zip:			Telephone No.:
Attn:			Facsimile No.:
Telephone No.:			Email Address:
Facsimile No.:			Price Per Share: $10.00
Email Address:
Number of Shares subscribed for:
Purchase Price: $

 

You must pay the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Company in the Closing Notice.

 

 

IN WITNESS WHEREOF, Pine Technology Acquisition Corp. has accepted this Subscription Agreement as of the date set forth below.

 

	PINE TECHNOLOGY ACQUISITION CORP.
	By:
	Name:
	Title:
Date: ____________, 2021

 

 

SCHEDULE A

 

ELIGIBILITY REPRESENTATIONS OF THE SUBSCRIBER

 

INSTITUTIONAL ACCREDITED INVESTOR STATUS
(Please check the applicable subparagraphs):

 

1.

☐ We are an “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act), for one or more of the following reasons (Please check the applicable subparagraphs):

 

☐

We are a bank, as defined in Section 3(a)(2) of the Securities Act or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in an individual or a fiduciary capacity.

 

☐

We are a broker or dealer registered under Section 15 of the Securities Exchange Act of 1934, as amended.

 

☐

We are an insurance company, as defined in Section 2(13) of the Securities Act.

 

☐

We are an investment company registered under the Investment Company Act of 1940 or a business development company, as defined in Section 2(a)(48) of that act.

 

☐

We are a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958.

 

☐

We are a plan established and maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if the plan has total assets in excess of $5 million.

 

☐

We are an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974, if the investment decision is being made by a plan fiduciary, as defined in Section 3(21) of such act, and the plan fiduciary is either a bank, an insurance company, or a registered investment adviser, or if the employee benefit plan has total assets in excess of $5 million.

 

☐

We are a private business development company, as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.

 

☐

We are a corporation, limited liability company, Massachusetts or similar business trust, or partnership, or an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, that was not formed for the specific purpose of acquiring the Securities, and that has total assets in excess of $5 million.

 

☐

We are a trust with total assets in excess of $5 million not formed for the specific purpose of acquiring the Securities, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the Securities Act.

 

C.

AFFILIATE STATUS (Please check the applicable box)

 

THE SUBSCRIBER:

 

☐  is:

 

☐  is not:

 

an “affiliate” (as defined in Rule 144 under the Securities Act) of the Company or acting on behalf of an affiliate of the Company.

 

This page should be completed by the Subscriber and constitutes a part of the Subscription Agreement.

 

 

Schedule A

Exhibit 10.2

 

PARENT SUPPORT AGREEMENT

 

This PARENT SUPPORT AGREEMENT, dated as of December 7, 2021 (this “Agreement”), is entered into by and among Pine Technology Acquisition Corp., a Delaware corporation (“Parent”), The Tomorrow Companies Inc., a Delaware corporation (the “Company”), Pine Technology Sponsor LLC, a Delaware limited liability company (“Sponsor”) and any transferees who become party to this Agreement pursuant to Section 2 (the “Parent Holders”). Capitalized terms used herein and not otherwise defined will have the meaning given such terms in the Merger Agreement (as defined below).

 

WHEREAS, concurrently herewith, Parent, Pine Technology Merger Corp., a Delaware corporation (“Merger Sub”), and the Company are entering into that certain Agreement and Plan of Merger (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”) pursuant to which, among other things, Merger Sub will merge with and into the Company, with the Company as the surviving company in the merger and, after giving effect to such merger, becoming a wholly-owned Subsidiary of Parent;

 

WHEREAS, as of the date hereof, Sponsor is the holder of record and “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of 8,625,000 Parent Class B Shares (the “Sponsor Shares,” together with any Parent Class A Shares and Parent Class B Shares of which ownership of record or the power to vote (including, without limitation, by proxy or power of attorney) has been or is hereafter acquired by Sponsor through the Closing Date (or, if earlier, prior to the termination of this Agreement) are referred to herein as the “Shares”);

 

WHEREAS, as of the date hereof, Sponsor is the holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of warrants to purchase 5,933,333 Parent Class A Shares (together with the Shares, the “Subject Securities”); and

 

WHEREAS, in order to induce Parent and the Company to enter into the Merger Agreement, Sponsor is executing and delivering this Agreement to Parent and the Company.

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, each of the parties hereto agree as follows:

 

1. Agreement to Vote. Each of Sponsor and the Parent Holders, by this Agreement, with respect to its Shares, hereby agrees to (a) vote, at any meeting of the stockholders of Parent, and in any action by written consent of the stockholders of Parent, all of its Shares (i) in favor of the approval and adoption of the Merger Agreement, each of the Parent Proposals, the transactions contemplated by the Merger Agreement and this Agreement, and if applicable, the adoption and approval of a proposal for the adjournment of the Parent Stockholder Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing, and (ii) in favor of any other matter reasonably necessary to the consummation of the transactions contemplated by the Merger Agreement, the approval of the Parent Proposals and considered and voted upon by the stockholders of Parent in connection therewith, (b) appear at any meeting of the stockholders of Parent for purposes of constituting a quorum, and (c) vote at any meeting of the stockholders of Parent, against any proposals that would materially impede the transactions.

 

 

2. Redemption and Transfer of Shares. Each of Sponsor and the Parent Holders agrees that it shall not, directly or indirectly, (a) redeem, submit a request to Parent’s transfer agent to redeem or otherwise exercise any right to redeem, any Subject Securities, (b) sell, assign, hypothecate, transfer (including by operation of law), lien, pledge, dispose of or otherwise encumber any of the Subject Securities or otherwise agree to do any of the foregoing (a “Transfer”), (c) deposit any Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (d) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, hypothecation, transfer (including by operation of law) or other disposition of any Subject Securities, (e) establish or increase a put equivalent position or liquidate or decrease a call equivalent provision within the meaning of Section 16 of the Exchange Act with respect to any Subject Securities, (f) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Securities, or (g) publicly announce any intention to effect any of the foregoing transactions; provided, however, Sponsor may Transfer any of its Subject Securities (i) to Parent’s directors or officers, any Affiliates or family members of any of Parent’s directors or officers, any members of Sponsor, or any Affiliates of Sponsor and (ii) by private sales or transfers made in connection with transactions contemplated by the Merger Agreement at prices no greater than the price at which the Subject Securities were originally purchased (a “Permitted Transfer”); provided, further, as a precondition to any such Permitted Transfer, the transferee must become a party to this Agreement by executing and delivering a signed joinder agreement in a form and substance satisfactory to Parent and the Company.

 

3. Waiver of Anti-Dilution Provision. Sponsor and each Parent Holder hereby waives (for itself or its successors, heirs and assigns), to the fullest extent permitted by law and the amended and restated certificate of incorporation of Parent (as may be amended or restated from time to time, the “Certificate of Incorporation”), the provisions of Article IV, Section 4.3(b) of the Certificate of Incorporation to have the Parent Class B Shares convert to Parent Class A Shares at a ratio of greater than one-for-one. The waiver specified in this Section 3 shall be applicable only in connection with the transactions contemplated by the Merger Agreement and this Agreement (and any shares of Class A Common Stock or equity-linked securities issued in connection with the transactions contemplated by the Merger Agreement and this Agreement) and shall be void and of no force and effect if the Merger Agreement shall be terminated for any reason.

 

4. Closing Date Deliverables. On the Closing Date, Sponsor shall deliver to the Company a duly executed copy of that certain Registration Rights Agreement, by and among Parent, the Company, Sponsor, certain of the Company’s stockholders or their respective affiliates, as applicable, and the other Holders (as defined therein) party thereto, in substantially the form attached as Exhibit E to the Merger Agreement.

 

 

5. Representations and Warranties. Sponsor represents and warrants to the Company as follows:

 

(a) The execution, delivery and performance by Sponsor of this Agreement and the consummation by Sponsor of the transactions contemplated hereby do not and will not (i) conflict with or violate any Law or Order applicable to Sponsor, (ii) require any consent, approval or authorization of, declaration, filing or registration with, or notice to, any person or entity, (iii) result in the creation of any Lien on any Shares (other than pursuant to this Agreement or transfer restrictions under applicable securities laws or operating agreement (the “Organizational Documents”), of Sponsor or (iv) conflict with or result in a breach of or constitute a default under any provision of Sponsor’s Organizational Documents.

 

(b) Sponsor owns of record and has good, valid and marketable title to the Shares free and clear of any Lien (other than pursuant to this Agreement or transfer restrictions under applicable securities laws or the Organizational Documents of Sponsor) and has the sole power (as currently in effect) to vote and full right, power and authority to sell, transfer and deliver such Shares, and Sponsor does not own, directly or indirectly, any other Shares.

 

(c) Sponsor has the power, authority and capacity to execute, deliver and perform this Agreement and that this Agreement has been duly authorized, executed and delivered by Sponsor.

 

6. Termination. This Agreement and the obligations of Sponsor and each parent Holder under this Agreement shall automatically terminate upon the earliest of: (a) the Effective Time; (b) the termination of the Merger Agreement in accordance with its terms; and (c) the mutual agreement of the Company and Sponsor. Upon termination or expiration of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, such termination or expiration shall not relieve any party from liability for any willful breach of this Agreement occurring prior to its termination.

 

7. Miscellaneous.

 

(a) Except as otherwise provided herein or in the Merger Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the transactions contemplated hereby are consummated.

 

(b) All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy or e-mail or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7(b)):

 

if to the Company:

 

The Tomorrow Companies Inc.

9 Channel Center Street, 7th Floor

Boston, MA 02127

Attn: Chief Executive Officer

E-mail: ####

 

 

with a copy (which shall not constitute notice) to:

 

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

Attention: William J. Schnoor

                  Paul R. Rosie

E-mail:      [email protected]

                  [email protected]

 

if to Parent or Sponsor:

 

Pine Technology Acquisition Corp.

260 Lena Drive

Aurora, OH 44202

Attention: Adam Karkowsky

E-mail: [email protected]

 

with a copy (which shall not constitute notice) to:

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

Attention: Adam M. Givertz

E-mail: [email protected]

 

(c) If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

(d) This Agreement, the Merger Agreement and the Additional Agreements constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise).

 

(e) This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

 

(f) The parties hereto agree that irreparable damage may occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy at law or in equity.

 

(g) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any Delaware Chancery Court. The parties hereto hereby (i) submit to the exclusive jurisdiction of the Delaware Chancery Court for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto, and (ii) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereunder may not be enforced in or by any of the above-named courts.

 

(h) This Agreement may be executed and delivered (including by facsimile or portable document format (pdf) transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

(i) Without further consideration, each party shall use commercially reasonable efforts to execute and deliver or cause to be executed and delivered such additional documents and instruments and take all such further action as may be reasonably necessary or desirable to consummate the transactions contemplated by this Agreement.

 

(j) This Agreement shall not be effective or binding upon the Company, Sponsor until such time as the Merger Agreement is executed.

 

(k) Each of the parties hereto hereby waives to the fullest extent permitted by applicable law any right it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement. Each of the parties hereto (i) certifies that 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 that foregoing waiver and (ii) acknowledges that it and the other parties hereto have been induced to enter into this Agreement and the transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and certifications in this Paragraph (k).

 

[Signature pages follow]

 

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

	PINE TECHNOLOGY ACQUISITION CORP.
	By:
	Name:
	Title:
	THE TOMORROW COMPANIES INC.
	By:
	Name:
	Title:
	PINE TECHNOLOGY SPONSOR LLC
	By:
	Name:
	Title:

 

 

6

Exhibit 10.3

 

VOTING AND SUPPORT AGREEMENT

 

This Voting and Support Agreement (this “Agreement”), dated as of December 7, 2021, is entered into by and among Pine Technology Acquisition Corp., a Delaware corporation (“Parent”), Pine Technology Merger Corp., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), The Tomorrow Companies Inc., a Delaware corporation (the “Company”), and [●], a [●] (the “Securityholder”). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement (as defined below).

 

RECITALS

 

WHEREAS, concurrently herewith, Parent, Merger Sub, and The Tomorrow Companies Inc., a Delaware corporation (the “Company”), are entering into an Agreement and Plan of Merger (as amended, supplemented, restated or otherwise modified from time to time, the “Merger Agreement”; capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement), pursuant to which (and subject to the terms and conditions set forth therein), among other transactions, Merger Sub will merge with and into the Company, with the Company surviving the merger (the “Merger”);

 

WHEREAS, as of the date hereof, the Securityholder is the record and “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) of and is entitled to dispose of and vote the number of shares of Company Capital Stock listed on the Securityholder’s signature page hereto (collectively, the “Owned Stock” and the Owned Stock and any additional equity securities of the Company (or any securities convertible into or exercisable or exchangeable for equity securities of the Company) in which the Securityholder acquires record and beneficial ownership after the date hereof, including by purchase, as a result of a dividend, split, recapitalization, combination, reclassification, exchange or change of such units, or upon exercise or conversion of any securities, the “Covered Stock”); and

 

WHEREAS, as a condition and inducement to the willingness of Parent and Merger Sub to enter into the Merger Agreement, the Company agreed to deliver Company Support Agreements executed by Specified Company Securityholders representing at least the requisite number and class of issued and outstanding shares of Company Capital Stock required to consent to, approve or adopt the Merger Agreement, the Additional Agreements and the Transactions, including the Merger.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Securityholder hereby covenants and agrees as follows:

 

1. Agreement to Vote. Subject to the earlier termination of this Agreement in accordance with Section 3, the Securityholder, in its capacity as an equityholder of the Company, irrevocably and unconditionally acknowledges and agrees that it has validly executed and delivered, and has caused any other holder of record of any of any of the Securityholder’s Covered Stock to validly execute and deliver, in each case to the Company, on the date first written above and automatically effective as of the first Business Day following the Effective Date, the written consent attached hereto as Exhibit A in respect of all of the Securityholder’s Covered Stock. In addition, prior to the Termination Date (as defined herein), the Securityholder, in its capacity as an equityholder of the Company, irrevocably and unconditionally agrees that, at any meeting of the stockholders of the Company (whether annual or special and whether or not an adjourned or postponed meeting, however called and including any adjournment or postponement thereof) and in connection with any written consent of the stockholders of the Company, the Securityholder shall, and shall cause any other holder of record of any of the Securityholder’s Covered Stock to:

 

(a) if and when such meeting is held, appear at such meeting or otherwise cause the Securityholder’s Covered Stock to be counted as present thereat for the purpose of establishing a quorum;

 

 

(b) vote (or execute and return an action by written consent), or cause to be voted at such meeting (or validly execute and return and cause such consent to be granted with respect to), all of the Securityholder’s Covered Stock owned as of the record date for such meeting (or the date that any written consent is executed by the Securityholder) in favor of the Merger and the adoption of the Merger Agreement and any other matters necessary or reasonably requested by the Company for consummation of the Merger and the other transactions contemplated by the Merger Agreement; and

 

(c) vote (or execute and return an action by written consent), or cause to be voted at such meeting, or validly execute and return and cause such consent to be granted with respect to, all of the Securityholder’s Covered Stock against any equityholder proposal and any other action that (i) would reasonably be expected to materially impede, interfere with, delay, postpone or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement or result in a breach of any covenant, representation or warranty or other obligation or agreement of the Company under the Merger Agreement or (ii) would result in the failure of any condition set forth in Article IX of the Merger Agreement to be satisfied or result in a breach of any covenant, representation or warranty or other obligation or agreement of the Securityholder contained in this Agreement.

 

The obligations of the Securityholder specified in this Section 1 shall apply whether or not the Merger or any action described above are recommended by the Board of Directors of the Company. For purposes of this Agreement, “Person” shall mean individual, corporation, partnership, limited partnership, limited liability company, syndicate, person (including, without limitation, a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.

 

2. No Inconsistent Agreements. The Securityholder hereby covenants and agrees that the Securityholder shall not, at any time prior to the Termination Date, (i) enter into any voting agreement or voting trust with respect to any of the Securityholder’s Covered Stock that is inconsistent in any respect with the Securityholder’s obligations pursuant to this Agreement, (ii) grant a proxy or power of attorney with respect to any of the Securityholder’s Covered Stock that is inconsistent with the Securityholder’s obligations pursuant to this Agreement, or (iii) enter into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.

 

3. Termination. This Agreement shall automatically terminate, without any notice or other action by any party, be void ab initio and no party shall have any further obligations or liabilities under this Agreement, upon the earliest of (i) the termination of the Merger Agreement in accordance with its terms, (ii) the time this Agreement is terminated upon the mutual written agreement of the Company, Parent, Merger Sub and the Securityholder, (iii) the election of the Securityholder in its sole discretion to terminate this Agreement following any material modification or amendment to, or the waiver of any provision of, the Merger Agreement, as in effect on the date hereof, that reduces the aggregate number of Closing Payment Shares, or (iv) the Effective Time (following the performance of the obligations of the parties hereunder required to be performed at or prior to the Effective Time) (in each case, without the Securityholder’s prior written consent) (the earliest such date under clause (i), (ii), (iii) and (iv) being referred to herein as the “Termination Date”); provided, that the provisions set forth in Sections 10 to 25 shall survive the termination of this Agreement; provided, further, that termination of this Agreement shall not relieve any party hereto from any liability for any willful breach of this Agreement prior to such termination.

 

4. Representations and Warranties of the Securityholder. The Securityholder hereby represents and warrants to Parent as to itself as follows:

 

(a) The Securityholder is the only record and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Owned Stock, free and clear of Liens other than as created by this Agreement and Permitted Liens. As of the date hereof, other than the Owned Stock and any other equity securities of the Company that become Covered Stock that the Securityholder acquires record or beneficial ownership after the date hereof that is either permitted pursuant to, or acquired in accordance with, the Merger Agreement, the Securityholder does not own beneficially or of record any equity securities of the Company (or any securities convertible into equity securities of the Company).

 

 

(b) The Securityholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Securityholder’s Covered Stock, (ii) has not entered into any voting agreement or voting trust with respect to any of the Securityholder’s Covered Stock that is inconsistent with the Securityholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Securityholder’s Covered Stock that is inconsistent with the Securityholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.

 

(c) The Securityholder is duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization and has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Securityholder and constitutes a valid and binding agreement of the Securityholder enforceable against the Securityholder in accordance with its terms, subject to the Enforceability Exceptions.

 

(d) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, the CFIUS Declaration(s) and the CFIUS Notice(s), no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Securityholder from, or to be given by the Securityholder to, or be made by the Securityholder with, any Governmental Authority in connection with the execution, delivery and performance by the Securityholder of this Agreement, the consummation of the transactions contemplated hereby (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Merger Agreement).

 

(e) The execution, delivery and performance of this Agreement by the Securityholder do not, and the consummation of the transactions contemplated hereby (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Merger Agreement) will not, constitute or result in (i) if the Securityholder is a legal entity, a breach or violation of, or a default under, the limited liability company agreement, certificate of incorporation or similar governing documents of the Securityholder, (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on the Covered Stock (other than Permitted Liens) pursuant to any contract binding upon the Securityholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any applicable Law to which the Securityholder is subject or (iii) any change in the rights or obligations of any party under any contract legally binding upon the Securityholder, except, in the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, loss, acceleration, Lien or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Securityholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Merger Agreement).

 

(f) As of the date of this Agreement, there is no action, proceeding or, to the Securityholder’s knowledge, investigation pending against the Securityholder or, to the knowledge of the Securityholder, threatened against the Securityholder that questions the beneficial or record ownership of the Securityholder’s Owned Stock, the validity of this Agreement or the performance by the Securityholder of its obligations under this Agreement.

 

(g) The Securityholder understands and acknowledges that Parent, Merger Sub and the Company entered into the Merger Agreement in reliance upon Securityholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Securityholder contained herein.

 

(h) No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission for which Parent, the Company or their respective Affiliates is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of such Securityholder, on behalf of such Securityholder, other than, for the avoidance of doubt, the Company’s engagement of any investment banker, broker, finder or other intermediary as set forth in the Merger Agreement or schedules thereto.

 

 

(i) Such Securityholder has had the opportunity to read the Merger Agreement and this Agreement and has had the opportunity to consult with its tax and legal advisors.

 

5. Certain Covenants of the Securityholder. Except in accordance with the terms of this Agreement, the Securityholder hereby covenants and agrees as follows:

 

(a) The Securityholder hereby agrees not to, directly or indirectly, prior to the Termination Date, except in connection with the consummation of the Merger, (i) sell, transfer, pledge, encumber, assign, hedge, swap, convert or otherwise dispose of (including by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by operation of Law or otherwise), either voluntarily or involuntarily (collectively, “Transfer”), or enter into any contract or option with respect to the Transfer of any of the Securityholder’s Covered Stock, (ii) amend, modify, supplement, withdraw, revoke or otherwise rescind the written consent attached hereto as Exhibit A in respect of all of the Securityholder’s Covered Stock, or (iii) take any action that would make any representation or warranty of the Securityholder contained herein untrue or incorrect or have the effect of preventing or materially delaying the Securityholder from or in performing its obligations under this Agreement; provided, however, that nothing herein shall prohibit a Transfer (A) to an Affiliate of the Securityholder, (B) occurring by will, testamentary document or intestate succession upon the death of a Securityholder who is an individual or (C) pursuant to community property laws or divorce decree (each, a “Permitted Transfer”); provided, further, that any Permitted Transfer shall be permitted only if, as a precondition to such Transfer, the transferee also agrees in a writing, reasonably satisfactory in form and substance to the Company, to assume all of the obligations of the Securityholder under, and be bound by all of the terms of, this Agreement in respect of the Covered Stock so Transferred and any Covered Stock subsequently acquired; provided, further, that any Transfer permitted under this Section 5(a) shall not relieve the Securityholder of its obligations under this Agreement. Any Transfer in violation of this Section 5(a) with respect to the Securityholder’s Covered Stock shall be null and void. Nothing in this Agreement shall prohibit direct or indirect transfers of equity or other interests in a Securityholder.

 

(b) The Securityholder hereby authorizes the Company to maintain a copy of this Agreement at either the executive office or the registered office of the Company.

 

(c) If the Securityholder owns any Company Warrants, the Securityholder hereby agrees to properly and timely exercise all of its Company Warrants prior to Closing such that the Securityholder shall no longer own any Company Warrants as of the Closing.

 

(d) From the date hereof through the Termination Date, the Securityholder shall not, and shall cause its officers, directors, controlled Affiliates, managers, consultants, employees, representatives and agents (“Representatives”) not to, directly or indirectly, (i) encourage, solicit, initiate, engage or participate in negotiations with any Person concerning any Alternative Transaction, (ii) take any other action intended or designed to facilitate the efforts of any Person relating to a possible Alternative Transaction or (iii) approve, recommend or enter into any Alternative Transaction or any Contract related to any Alternative Transaction. For purposes of this Agreement, the term “Alternative Transaction” means any of the following transactions involving the Company or its Subsidiaries (other than the transactions contemplated by this Agreement and the Merger Agreement): (A) any transaction or series of related transactions under which any Person(s), directly or indirectly, (x) acquires or otherwise purchases the Company or any of its controlled Affiliates or (y) all or a material portion of assets or businesses of the Company or any of its controlled Affiliates (in the case of each of clause (x) and (y), whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, tender offer or otherwise), or (B) any equity or similar investment in the Company or its controlled Affiliates.

 

(e) The Securityholder agrees that on or before the Closing Date, the Securityholder will agree to the termination in full without any liability or obligation to Parent, the Company or any of their respective Affiliates following the Closing of all Contracts set forth on Schedule 6.9 to the Merger Agreement, and the Securityholder agrees to take all actions as may be reasonably necessary or reasonably requested to effect such termination.

 

(f) The Securityholder agrees that on or before the Closing Date, the Securityholder will deliver duly-executed copies of the Lockup Agreement and Registration Rights Agreement, substantially in the forms attached as Exhibits D and E, respectively, to the Merger Agreement.

 

 

6. CFIUS Covenants: Securityholder agrees as follows:¹

 

(a) To the extent any of the following have not been completed prior to the date hereof, as soon as practicable after the date of this Agreement, such Securityholder, together with Parent and the Company, shall prepare and file the CFIUS Declaration. Such Securityholder shall use reasonable best efforts to obtain CFIUS Approval, including without limitation (i) promptly preparing and submitting a CFIUS Notice in the event that CFIUS requests that such Securityholder submit a CFIUS Notice pursuant to 31 C.F.R. § 800.407(a)(1); and (ii) providing any additional information requested by CFIUS or any other agency or branch of the U.S. government in connection with the CFIUS assessment, review, or investigation of the transaction contemplated by the Merger Agreement, within the time periods specified in the applicable regulations, or otherwise specified by the CFIUS staff.

 

(b) Notwithstanding anything to the contrary herein and in the Merger Agreement, such Securityholder shall as promptly as practicable, take, or cause to be taken, all actions and do, or cause to be done, and assist and cooperate with the filing persons in doing, all things necessary, proper or advisable to obtain CFIUS Approval, including taking all such action as may be necessary to resolve such objections, if any, as CFIUS may assert with respect to the Transactions, provided that in no event shall such Securityholder be obligated to, in order to obtain the CFIUS Approval, consent to take any actions that would reasonably be anticipated to have a material adverse impact on the Company, Parent, such Securityholder or their respective Subsidiaries following the Merger, including the Surviving Corporation, taken as a whole.

 

(c) Such Securityholder shall, in connection with the efforts to obtain the CFIUS Approval, (i) cooperate in all respects and consult with Parent and the Company in connection with the CFIUS Declaration(s) or CFIUS Notice(s), including by allowing Parent and the Company to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions; (ii) promptly inform Parent and the Company of any communication received by such Securityholder from, or given by such Securityholder to, CFIUS, by promptly providing a copy of any such written communications except for any exhibits to such communications providing personal identifying information, any sensitive business confidential information and any sensitive personal information that such Securityholder reasonably declines to share; and (iii) permit Parent and the Company to review in advance any communication that it gives to, and consult with each other in advance of any meeting, telephone call or conference with CFIUS, and to the extent not prohibited by CFIUS, give Parent and the Company the opportunity to attend and participate in any telephonic conference or in-person meeting with CFIUS, in each of clauses (i), (ii) and (iii) of this Section 6(c) subject to confidentiality considerations contemplated by the DPA or required by CFIUS.

 

7. Further Assurances. From time to time, at Parent’s request and without further consideration, the Securityholder shall execute and deliver such additional documents and take all such further action as may be reasonably necessary or reasonably requested to effect the actions and consummate the transactions contemplated by this Agreement.

 

8. Disclosure. The Securityholder hereby authorizes the Company and Parent to publish and disclose in any announcement or disclosure, to the extent required by law, rule, regulation or by the SEC, the Securityholder’s identity and ownership of the Covered Stock and the nature of the Securityholder’s obligations under this Agreement.

 

9. Changes in Capital Securities. In the event of a split, dividend or distribution, or any change in the Company’s capital securities by reason of any split-up, reverse split, recapitalization, combination, reclassification, exchange of units or the like, the terms “Owned Stock” and “Covered Stock” shall be deemed to refer to and include such securities as well as all such security dividends and distributions and any securities into which or for which any or all of such units may be changed or exchanged or which are received in such transaction.

 

¹ NTD: To be included in the support agreements of the co-founders who will be CFIUS filing persons.

 

 

10. Amendments; No Waivers; Remedies.

 

(a) This Agreement cannot be amended, except by a writing signed by Parent, the Company and any Securityholder to whom the amendment applies, and cannot be terminated orally or by course of conduct. No provision hereof can be waived, except by a writing signed by the party against whom such waiver is to be enforced, and any such waiver shall apply only in the particular instance in which such waiver shall have been given.

 

(b) Neither any failure or delay in exercising any right or remedy hereunder or in requiring satisfaction of any condition herein nor any course of dealing shall constitute a waiver of or prevent any party from enforcing any right or remedy or from requiring satisfaction of any condition. No notice to or demand on a party waives or otherwise affects any obligation of that party or impairs any right of the party giving such notice or making such demand, including any right to take any action without notice or demand not otherwise required by this Agreement. No exercise of any right or remedy with respect to a breach of this Agreement shall preclude exercise of any other right or remedy, as appropriate to make the aggrieved party whole with respect to such breach, or subsequent exercise of any right or remedy with respect to any other breach.

 

(c) Except as otherwise expressly provided herein, no statement herein of any right or remedy shall impair any other right or remedy stated herein or that otherwise may be available.

 

11. Notices. Any notice hereunder shall be sent in writing, addressed as specified below, and shall be deemed given: (a) if by hand, electronic mail or recognized courier service, by 5:00 PM on a Business Day, addressee’s day and time, on the date of delivery, and otherwise on the first Business Day after such delivery; (b) if by fax, on the date that transmission is confirmed electronically, if by 5:00 PM on a Business Day, addressee’s day and time, and otherwise on the first Business Day after the date of such confirmation; (c) if by email, on the date of transmission; or (d) five (5) days after mailing by certified or registered mail, return receipt requested. Notices shall be addressed to the respective parties as follows (excluding telephone numbers, which are for convenience only), or to such other address as a party shall specify to the others in accordance with these notice provisions:

 

if to the Securityholder, to it as provided on the Securityholder’s signature page hereto;

 

if to Parent or Merger Sub, to such company at:

 

Pine Technology Acquisition Corp.

260 Lena Drive

Aurora, Ohio 44202

Attn: Adam Karkowsky

E-mail: [email protected]

 

with a copy (which shall not constitute notice) to:

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

Attn: Adam M. Givertz

E-mail: [email protected]

 

if to the Company to:

 

The Tomorrow Companies Inc.

9 Channel Center Street, 7^th Floor

Boston, MA 02210

Attn: Chief Executive Officer

E-mail: ####

 

with a copy (which shall not constitute notice) to:

 

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

Attn: William J. Schnoor

Paul R. Rosie

E-mail: [email protected]; [email protected]

 

 

12. No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent or Merger Sub any direct or indirect ownership or incidence of ownership of or with respect to the Covered Stock of the Securityholder. All rights, ownership and economic benefits of and relating to the Covered Stock of the Securityholder shall remain vested in and belong to the Securityholder, and Parent and Merger Sub shall have no authority to manage, direct, restrict, regulate, govern or administer any of the policies or operations of Company or exercise any power or authority to direct the Securityholder in the voting or disposition of any of the Securityholder’s Covered Stock, except as otherwise provided herein.

 

13. Entire Agreement. This Agreement, together with the Merger Agreement and Additional Agreements, sets forth the entire agreement of the parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous understandings and agreements related thereto (whether written or oral), all of which are merged herein. No provision of this Agreement, the Merger Agreement or any Additional Agreement may be explained or qualified by any agreement, negotiations, understanding, discussion, conduct or course of conduct or by any trade usage. Except as otherwise expressly stated herein, in the Merger Agreement or in any Additional Agreement, there is no condition precedent to the effectiveness of any provision hereof or thereof. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the matters contemplated by this Agreement exist between the parties except as expressly set forth or referenced in this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Merger Agreement).

 

14. No Third-Party Beneficiaries. Neither this Agreement nor any provision hereof confers any benefit or right upon or may be enforced by any Person not a signatory hereto.

 

15. Governing Law; Jurisdiction; Waiver of Jury Trial.

 

(a) This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without giving effect to the conflict of laws principles thereof that would result in the application of the laws of another jurisdiction.

 

(b) Any proceeding or Action based upon, arising out of or related to this Agreement or the Merger Agreement or the transactions contemplated hereby or by the Merger Agreement 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 it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each of the parties irrevocably and unconditionally (i) consents and submits to the exclusive jurisdiction of each such court in any such proceeding or 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 proceeding or Action shall be heard and determined only in any such court, and (iv) agrees not to bring any proceeding or 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 Action or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Action, suit or proceeding brought pursuant to this Section 15.

 

(c) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

 

16. Assignment; Successors. No party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties hereto. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Any attempted assignment in violation of the terms of this Section 16 shall be null and void, ab initio.

 

17. 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, specific performance, or other equitable relief, to prevent breaches of this Agreement including the Securityholder’s obligations to vote its Covered Stock as provided in this Agreement or the written consent attached hereto as Exhibit A, without proof of damages, and to the right of specific enforcement of the terms and provisions of this Agreement, in addition to any other remedy to which any party is entitled at law or in equity, and without that right, none of the parties would have entered into 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.

 

18. Severability. A determination by a court or other legal authority that any provision that is not of the essence of this Agreement is legally invalid shall not affect the validity or enforceability of any other provision hereof. The parties shall cooperate in good faith to substitute (or cause such court or other legal authority to substitute) for any provision so held to be invalid a valid provision, as alike in substance to such invalid provision as is lawful.

 

19. Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement. This Agreement shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of original, photocopied, or electronically transmitted (including scanned.pdf image) signature pages that together (but need not individually) bear the signatures of all other parties.

 

20. Interpretation and Construction. Unless the express context otherwise requires:

 

(a) References to particular sections and subsections, schedules, annexes and exhibits not otherwise specified are cross-references to sections and subsections, schedules, annexes and exhibits of this Agreement unless otherwise indicated. Captions are not a part of this Agreement, but are included for convenience, only. The table of contents contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

(b) The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement and reference to a particular section of this Agreement will include all subsections thereof, unless, in each case, the context otherwise requires; and, unless the context requires otherwise, “party” means a party signatory hereto.

 

(c) Any use of the singular or plural, or the masculine, feminine or neuter gender, includes the others, unless the context otherwise requires; the words “include,” “includes,” and “including” means “including without limitation”; the word “or” means “and/or”; the word “any” means “any one, more than one, or all”; and, unless otherwise specified, any financial or accounting term has the meaning of the term under United States generally accepted accounting principles as consistently applied heretofore by the Company.

 

(d) Unless otherwise specified, any reference to any agreement (including this Agreement), instrument, or other document includes all schedules, exhibits, or other attachments referred to therein, and any reference to a statute or other law means such law as amended, restated, supplemented or otherwise modified from time to time and includes any rule, regulation, ordinance or the like promulgated thereunder, in each case, as amended, restated, supplemented or otherwise modified from time to time. Unless otherwise specified, all references to currency amounts in this Agreement shall mean United States Dollars.

 

 

(e) If any action is required to be taken or notice is required to be given within a specified number of days following a specific date or event, the day of such date or event is not counted in determining the last day for such action or notice. If any action is required to be taken or notice is required to be given on or before a particular day, the date that is the reference date in calculating such period shall be excluded when calculating the time before which or within which such action or notice is to be taken or given, and if such date which is not a Business Day, such action or notice shall be considered timely if it is taken or given on or before the next Business Day.

 

21. Capacity as a Securityholder. Notwithstanding anything herein to the contrary, the Securityholder signs this Agreement solely in the Securityholder’s capacity as an equityholder of the Company, and not in any other capacity and this Agreement shall not limit or otherwise affect the actions or inactions of any Affiliate, Representative or designee of the Securityholder or any of its Affiliates in his or her capacity, if applicable, as an officer, director, manager or fiduciary of the Company or any of its Subsidiaries or any other Person.

 

22. Waiver of Appraisal and Dissenters’ Rights. Securityholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived and to not to exercise or assert, if applicable, any appraisal rights, dissenter’s rights or similar rights (including any notice requirements related thereto) (whether under the DGCL or other applicable Law) in connection with the Merger or any of the other Transactions that the Securityholder may have by virtue of, or with respect to, ownership of the Covered Stock (including any and all such rights under Section 262 of the DGCL) and (b) withdraw all written objections to the Merger, demands for appraisal and/or exercises of dissenter’s rights, if any, with respect to the Covered Stock.

 

23. Waiver. Reference is made to the final prospectus of Parent, dated March 10, 2021 (the “Prospectus”), which is available at www.sec.gov. The Securityholder understands that Parent has established the Trust Account for the benefit of the public shareholders of Parent and the underwriters of the IPO pursuant to the Trust Agreement and that, except for a portion of the interest earned on the amounts held in the Trust Account, Parent may disburse monies from the Trust Account only for the purposes set forth in the Trust Agreement. For and in consideration of Parent agreeing to enter into this Agreement, the Securityholder hereby agrees that (i) it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account, except for redemption and liquidation rights, if any, the Securityholder may have in respect of any Parent Class A Shares held by it or the release of proceeds from the Trust Account upon consummation of the Merger, and (ii) it will have no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or any monies in, the Trust Account that it may have now or in the future, except for redemption and liquidation rights, if any, the Securityholder may have in respect of any Parent Class A Shares held by it or the release of proceeds from the Trust Account upon consummation of the Merger; provided, that (x) nothing herein shall serve to limit or prohibit the Securityholder’s right to pursue a claim against Parent for legal relief against monies or other assets outside the Trust Account, for specific performance or other equitable relief in connection with the consummation of the transactions (including a claim for Parent to specifically perform its obligations under this Agreement or the Merger Agreement and cause the disbursement of the balance of the cash remaining in the Trust Account) and (y) nothing herein shall serve to limit or prohibit any claims that the Securityholder may have in the future against Parent’s assets or funds that are not held in the Trust Account. The Securityholder acknowledges and agrees that this Section 23 is material to this Agreement and has been specifically relied upon by Parent to induce Parent to enter into this Agreement, and the Securityholder further intends and understands this Section 23 to be valid, binding and enforceable under applicable Law. In the event the Securityholder commences any action or proceeding which seeks, in whole or in part, relief against the funds held in the Trust Account in breach of this Agreement, the Securityholder will be obligated to pay to Parent all of its legal fees and costs in connection with any such action in the event Parent prevails in such action or proceeding.

 

24. Non-Recourse. Except in the case of fraud, this Agreement may be enforced only against, and any dispute, claim or controversy based upon, arising out of or related to this Agreement or the transactions contemplated hereby may be brought only against, the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth in this Agreement with respect to such party. Except in the case of fraud, no past, present or future director, officer, employee, incorporator, member, partner, stockholder, agent, attorney, advisor, lender or Representative or Affiliate of any named party to this Agreement (which Persons are intended third party beneficiaries of this Section 24) shall have any liability (whether in contract or tort, at law or in equity or otherwise, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of such named party or for any dispute, claim or controversy based on, arising out of, or related to this Agreement or the transactions contemplated hereby.

 

25. Further Assurances. Each party shall execute and deliver such documents and take such action, as may reasonably be considered within the scope of such party’s obligations hereunder, necessary to effectuate the transactions contemplated by this Agreement.

 

[The remainder of this page is intentionally left blank.]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.

 

	PINE TECHNOLOGY ACQUISITION CORP.
	By:
		Name:
		Title:
	PINE TECHNOLOGY MERGER CORP.
	By:
		Name:
		Title:
	THE TOMORROW COMPANIES INC.
		Name:
		Title:

 

[Signature Page to Securityholder Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.

 

	[SECURITYHOLDER]
	By:
		Name:
		Title:
	Company Capital Stock Held:
	[[●] shares of Company Common Stock   [●] shares of Company Series Seed Preferred Stock   [●] shares of Company Series A Preferred Stock   [●] shares of Company Series A-1 Preferred Stock   [●] shares of Company Series B Preferred Stock   [●] shares of Company Series B-1 Preferred Stock   [●] shares of Company Series C Preferred Stock   [●] shares of Company Series D Preferred Stock]

 

Notices:

 

[●]

[●]

[●]

Attn: [●]

E-mail: [●]

 

with a copy (which shall not constitute notice) to:

 

[●]

[●]

[●]

Attn: [●]

E-mail: [●]

 

[Signature Page to Securityholder Support Agreement]

 

 

Exhibit A

Written Consent

 

 

Exhibit 10.4

 

REGISTRATION RIGHTS AGREEMENT

 

THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of ____________, is made and entered into by and among:

 

(i) The Tomorrow Companies Inc., a Delaware corporation (the “Company”) (formerly known as Pine Technology Acquisition Corp.);

 

(ii) Pine Technology Sponsor LLC, a Delaware limited liability company (the “Sponsor”); and

 

(iii) the former equityholders of The Tomorrow Companies Inc. (“Tomorrow.io”) designated on Schedule A hereto as Tomorrow.io Equityholders, who received shares of Common Stock (as defined below) pursuant to the transactions contemplated by the Merger Agreement (as defined below) (collectively, the “Tomorrow.io Equityholders” and, together with the Sponsor and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 of this Agreement, a “Holder” and collectively the “Holders”).

 

RECITALS

 

WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of December 7, 2021 (as it may be amended, supplemented, restated or otherwise modified from time to time, the “Merger Agreement”), by and among the Company, Tomorrow.io and Pine Technology Merger Corp., a Delaware corporation (“Merger Sub”), Merger Sub merged with and into Tomorrow.io, with Tomorrow.io surviving as a wholly-owned subsidiary of the Company, and all of the shares of capital stock of Tomorrow.io (including those held by the Tomorrow.io Equityholders) were converted into the right to receive common stock of the Company (“Common Stock”); and

 

WHEREAS, in connection with the consummation of the transactions described above (the “Transactions”), the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration rights with respect to the Registrable Securities (as defined below) on the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Article I
Definitions

 

1.1 Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:

 

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

 

“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 the Chief Financial Officer of the Company, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (iii) the Company has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable determination of the Board, to cause the Registration Statement to fail to comply with applicable disclosure requirements.

 

 

“Agreement” shall have the meaning given in the Preamble hereto.

 

“Block Trade” shall mean any non-marketed underwritten offering taking the form of a block trade to a financial institution, “qualified institutional buyer” or “institutional accredited investor,” bought deal, over-night deal or similar transaction that does not include the filing of a Prospectus or Issuer Free Writing Prospectus with the Commission, “road show” presentations to potential investors requiring substantial marketing effort from management, the issuance of a “comfort letter” by the Company’s auditors or the issuance of legal opinions by the Company’s legal counsel.

 

“Board” shall mean the board of directors of the Company.

 

“Merger Agreement” shall have the meaning given in the Recitals hereto.

 

“Closing” shall have the meaning given in the Merger Agreement.

 

“Closing Date” shall have the meaning given in the Merger Agreement.

 

“Commission” shall mean the Securities and Exchange Commission.

 

“Common Stock” shall have the meaning given in the Recitals hereto.

 

“Company” shall have the meaning given in the Recitals hereto and includes the Company’s successors by recapitalization, merger, consolidation, spin-off, reorganization or similar transaction.

 

“Demanding Holder” shall have the meaning given in Section 2.1.4.

 

“EDGAR” shall have the meaning given in Section 3.1.3.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.

 

“FINRA” shall mean the Financial Industry Regulatory Authority Inc.

 

“Form S-1 Shelf” shall have the meaning given in Section 2.1.1.

 

“Form S-3 Shelf” shall have the meaning given in Section 2.1.1.

 

“Governmental Authority” shall mean any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency (which for the purposes of this Agreement shall include FINRA and the Commission), governmental commission, department, board, bureau, agency or instrumentality, court or tribunal.

 

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

 

“Holder Information” shall have the meaning given in Section 4.1.2.

 

 

“Holders” shall have the meaning given in the Preamble hereto, for so long as such person or entity holds any Registrable Securities.

 

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

 

“Lock-Up Period” shall have the meaning given in the Lockup Agreement.

 

“Lockup Agreement” shall mean the Lockup Agreement, dated as of December 7, 2021, by and among the Company and the other parties thereto, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

“Maximum Number of Securities” shall have the meaning given in Section 2.1.5.

 

“Merger Sub” shall have the meaning given in the Recitals hereto.

 

“Minimum Takedown Threshold” shall have the meaning given in Section 2.1.4.

 

“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.

 

“Permitted Transferees” shall mean (a) with respect to the Sponsor and its respective Permitted Transferees, (i) prior to the expiration of the Lock-Up Period pursuant to the Lockup Agreement (the “Sponsor Lock-Up Period”), any person or entity to whom such Holder is permitted to transfer Registrable Securities prior to the expiration of such Lock-Up Period pursuant to the Lockup Agreement and (ii) after the expiration of the Sponsor Lock-Up Period, any person or entity to whom such Holder is permitted to transfer Registrable Securities, subject to and in accordance with any applicable agreement between such Holder and/or their respective Permitted Transferees and the Company and any transferee thereafter; (b) with respect to the Tomorrow.io Equityholders and their respective Permitted Transferees, (i) prior to the expiration of the Lock-Up Period, any person or entity to whom such Holder is permitted to transfer Registrable Securities prior to the expiration of the Lock-Up Period pursuant to the Lockup Agreement (including any written waiver thereunder or amendment or modification thereto) and (ii) after the expiration of the Lock-Up Period, any person or entity to whom such Holder is permitted to transfer such Registrable Securities, subject to and in accordance with any applicable agreement between such Holder and/or their respective Permitted Transferees and the Company and any transferee thereafter; and (c) with respect to all other Holders and their respective Permitted Transferees, any person or entity to whom such Holder of Registrable Securities is permitted to transfer such Registrable Securities, subject to and in accordance with any applicable agreement between such Holder and/or their respective Permitted Transferees and the Company and any transferee thereafter.

 

“Piggyback Registration” shall have the meaning given in Section 2.2.1.

 

“PIPE Investors” shall have the meaning given in the Merger Agreement

 

“Plan of Distribution” shall have the meaning given in Section 2.1.1.

 

“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.

 

 

“Registrable Security” shall mean (a) any outstanding Common Stock or any other equity security of the Company (including warrants to purchase shares of Common Stock) held by a Holder immediately following the Closing (including Common Stock issuable pursuant to the Merger Agreement), (b) any Common Stock that may be acquired by any Holder upon the exercise of a warrant or other right to acquire Common Stock held by a Holder immediately following the Closing, (c) any Common Stock or other security of the Company (including warrants to purchase Common Stock) (including any Common Stock issued or issuable upon the exercise of any such warrant or other equity security) of the Company otherwise acquired or owned by a Holder following the date hereof to the extent that such securities are “restricted securities” (as defined in Rule 144) or otherwise held by an “affiliate” (as defined in Rule 144), and (d) any other equity security of the Company or any of its subsidiaries issued or issuable with respect to any securities referenced in clause (a), (b) or (c) above by way of a stock dividend or stock split or in connection with a recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon the earliest to occur of: (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 in accordance with such Registration Statement by the applicable Holder; (B) such securities shall have been otherwise transferred, new certificates or book entry positions for such securities not bearing 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 or any successor rule promulgated under the Securities Act (but with no requirement to maintain current public information or volume or other restrictions or limitations including as to manner or timing of sale); and (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 any related 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 documented, out-of-pocket expenses of a Registration, including, without limitation, the following:

 

(A) all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and fees of any national securities exchange on which the Common Stock is then listed;

 

(B) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of outside counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);

 

(C) printing, messenger, telephone and delivery expenses;

 

(D) reasonable fees and disbursements of counsel for the Company;

 

(E) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and

 

(F) reasonable fees and expenses of one legal counsel selected by the majority-in-interest of the securities requested to be registered by the Demanding Holders in an Underwritten Offering (not to exceed $100,000 without the prior written consent of the Company).

 

 

“Registration Statement” shall mean any registration statement that covers 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 materials incorporated by reference in such registration statement.

 

“Requesting Holders” shall have the meaning given in Section 2.1.5.

 

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

 

“Shelf” shall mean the Form S-1 Shelf, the Form S-3 Shelf or any Subsequent Shelf Registration, as the case may be.

 

“Shelf Registration” shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).

 

“Shelf Takedown” shall mean an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.

 

“Sponsor” shall have the meaning given in the Preamble hereto.

 

“Subsequent Shelf Registration” shall have the meaning given in Section 2.1.2.

 

“Subscription Agreements” shall have the meaning given in the Merger Agreement

 

“Tomorrow.io Equityholders” shall have the meaning given in the Preamble hereto.

 

“Transactions” shall have the meaning given in the Recitals hereto.

 

“Transfer” shall mean the (a) sale 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 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 and not as part of such dealer’s market-making activities.

 

“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 2.1.4.

 

“Withdrawal Notice” shall have the meaning given in Section 2.1.6.

 

 

Article II

Registrations and Offerings

 

2.1 Shelf Registration.

 

2.1.1 Filing. The Company shall file within thirty (30) days after the Closing Date (the “Filing Deadline”), and use commercially reasonable efforts to cause to be declared effective as soon as practicable thereafter, a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or, if the Company is eligible to use a Registration Statement on Form S-3, a Shelf Registration on Form S-3 (the “Form S-3 Shelf”), in each case, covering the resale of all 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 have such Shelf declared effective as soon as practicable after the filing thereof, but no later than the earlier of (a) the 60^th calendar day (or 90^th calendar day if the Commission notifies the Company that it will “review” the Registration Statement) following the Filing Deadline and (ii) the 5^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 (the “Plan of Distribution”) 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 Commission 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. In the event the Company files a Form S-1 Shelf, the Company shall use its commercially reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form S-3 Shelf as soon as practicable after the Company is eligible to use Form S-3. The Company’s obligation under this Section 2.1.1, shall, for the avoidance of doubt, be subject to Section 3.4.

 

2.1.2 Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including using commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all Registrable Securities (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. The Company’s obligation under this Section 2.1.2, shall, for the avoidance of doubt, be subject to Section 3.4.

 

 

2.1.3 Additional Registrable Securities. Subject to Section 3.4, in the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, the Company, upon request of the Sponsor or a Tomorrow.io Equityholder (which for this purpose shall include affiliated entities) that holds collectively at least five (5.0%) percent of the Registrable Securities, shall promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at the Company’s option, the Shelf (including by means of a post-effective amendment) or a Subsequent Shelf Registration and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration shall be subject to the terms hereof; provided, however, that the Company shall only be required to cause such Registrable Securities to be so covered twice per calendar year for the Sponsor or Tomorrow.io Equityholders, respectively.

 

2.1.4 Requests for Underwritten Shelf Takedowns. Subject to Section 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, any Tomorrow.io Equityholder or Sponsor (any of the Tomorrow.io Equityholders or the Sponsor being, in such case, a “Demanding Holder”) may request to sell all or any portion of its Registrable Securities in an Underwritten Offering or other coordinated offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder(s) with a total offering price reasonably expected to exceed, in the aggregate, $25 million (the “Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Subject to Section 2.4.4, the initial Demanding Holder shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized investment banks), subject to the Company’s prior approval (which shall not be unreasonably withheld, conditioned or delayed). The Tomorrow.io Equityholders, on the one hand, and the Sponsor, on the other hand, may each demand no more than (i) one (1) Underwritten Shelf Takedown pursuant to this Section 2.1.4 in any six (6) month period or (ii) two (2) Underwritten Shelf Takedowns pursuant to this Section 2.1.4 in any twelve (12) month period. Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Offering pursuant to any then effective Registration Statement, including a Form S-3, that is then available for such offering.

 

2.1.5 Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good faith, advises the Company, the Demanding Holders and the Holders requesting piggy-back rights pursuant to this Agreement with respect to such Underwritten Shelf Takedown (the “Requesting Holders”) (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other Common Stock or other equity securities that the Company desires to sell and all Common Stock or other equity securities, if any, that have been requested to be sold in such Underwritten Offering pursuant to separate written contractual piggy-back registration rights held by any other stockholders, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, before including any Common Stock or other equity securities proposed to be sold by Company or by other holders of Common Stock or other equity securities, the Registrable Securities of (i) first, the Demanding Holders that can be sold without exceeding the Maximum Number of Securities (pro rata based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that all of the Demanding Holders have requested be included in such Underwritten Shelf Takedown) and (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Requesting Holders (if any) (pro rata based on the respective number of Registrable Securities that each Requesting Holder (if any) has requested be included in such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that all of the Requesting Holders have requested be included in such Underwritten Shelf Takedown) that can be sold without exceeding the Maximum Number of Securities. To facilitate the allocation of Registrable Securities in accordance with the above provisions, the Company or the Underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. The Company shall not be required to include any Registrable Securities in such Underwritten Shelf Takedown unless the Holders accept the terms of the underwriting as agreed upon between the Company and its Underwriters.

 

 

2.1.6 Withdrawal. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Shelf Takedown, a majority-in-interest of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Shelf Takedown; provided that any Tomorrow.io Equityholder or the Sponsor 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 Tomorrow.io Equityholder or the Sponsor or any of their respective Permitted Transferees, as applicable. If withdrawn, a demand for an Underwritten Shelf Takedown shall not constitute a demand for an Underwritten Shelf Takedown for purposes of Section 2.1.4; provided that, if a Tomorrow.io Equityholder or the Sponsor 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 the Tomorrow.io Equityholder or the Sponsor, as applicable, for purposes of Section 2.1.4. 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 Shelf Takedown. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Shelf Takedown prior to its withdrawal under this Section 2.1.6.

 

2.2 Piggyback Registration.

 

2.2.1 Piggyback Rights. Subject to Section 2.4.3, if the Company or any Holder proposes to conduct a registered offering of, or if the Company proposes to file a Registration Statement under the Securities Act with respect to the Registration of, equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, 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, an Underwritten Shelf Takedown pursuant to Section 2.1 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) 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) for a dividend reinvestment plan or (v) for a Block Trade, then the Company shall give written notice of such proposed offering to all of the Holders of Registrable Securities as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red herring” prospectus or prospectus supplement used for marketing such offering, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to include in such registered offering such number of Registrable Securities as such Holders may request in writing within five (5) days after receipt of such written notice (such registered offering, a “Piggyback Registration”). Subject to Section 2.2.2, the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and, if applicable, shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit the Registrable Securities requested by the Holders pursuant to this Section 2.2.1 to be included therein on the same terms and conditions as any similar securities of the Company included in such registered offering and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable Securities in a Piggyback Registration shall be subject to such Holder’s agreement to enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering.

 

 

2.2.2 Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of shares of Common Stock or other equity securities of the Company that the Company desires to sell, taken together with (i) the shares of Common Stock or other equity securities of the Company, if any, as to which Registration or a registered offering has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to Section 2.2 hereof, and (iii) the shares of Common Stock or other equity securities of the Company, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights of persons or entities other than the Holders of Registrable Securities hereunder, exceeds the Maximum Number of Securities, then:

 

(a) If the Registration or registered offering is undertaken for the Company’s account, the Company shall include in any such Registration or registered offering (A) first, the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.2.1, pro rata, based on the respective number of Registrable Securities that each Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to written contractual piggy-back registration rights of persons or entities other than the Holders of Registrable Securities hereunder, which can be sold without exceeding the Maximum Number of Securities;

 

(b) If the Registration or registered offering is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration or registered offering (A) first, the shares of Common Stock or other equity securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.2.1, pro rata, based on the respective number of Registrable Securities that each Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities; and

 

 

(c) If the Registration or registered offering is pursuant to a request by Holder(s) of Registrable Securities pursuant to Section 2.1 hereof, then the Company shall include in any such Registration or registered offering securities pursuant to Section 2.1.5.

 

2.2.3 Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdrawal from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.1.6) shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration (which, in no circumstance, shall include the Shelf) at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than Section 2.1.6), the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.2.3.

 

2.2.4 Unlimited Piggyback Registration Rights. For purposes of clarity, subject to Section 2.1.6, any Piggyback Registration effected pursuant to Section 2.2 hereof shall not be counted as a demand for an Underwritten Shelf Takedown under Section 2.1.4 hereof.

 

2.3 Market Stand-off. In connection with any Underwritten Offering of equity securities of the Company (other than a Block Trade), each Holder that participates in the Underwritten Offering pursuant to the terms of this Agreement 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), during the 90-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 or other equity securities, except as (i) expressly permitted by such lock-up agreement or (ii) in the event the Underwriters managing the offering otherwise agree by written consent, in the case of clause (ii), subject to the approval of the Board, including the director designated by Sponsor pursuant to the Merger Agreement (such approval not to be unreasonably withheld or delayed). 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 Holders that execute a lock-up agreement).

 

2.4 Block Trades.

 

2.4.1 Notwithstanding the foregoing, at any time and from time to time when an effective Shelf is on file with the Commission and effective, if a Demanding Holder or Demanding Holders wishes to engage in a Block Trade, with a total offering price reasonably expected to exceed, in the aggregate, the lower of either (x) $25 million or (y) all remaining Registrable Securities held by the Demanding Holder, then notwithstanding the time periods provided for in Section 2.1.4, such Demanding Holder need only to notify the Company of the Block Trade at least five (5) business days prior to the day such offering is to commence and the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Block Trade; provided that the Demanding Holders representing a majority of the Registrable Securities wishing to engage in the Block Trade shall use commercially reasonable efforts to work with the Company and any Underwriters prior to making such request in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to the Block Trade.

 

 

2.4.2 Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used in connection with a Block Trade, a majority-in-interest of the Demanding Holders initiating such Block Trade shall have the right to submit a Withdrawal Notice to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Block Trade. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Block Trade prior to its withdrawal under this Section 2.4.2.

 

2.4.3 Notwithstanding anything to the contrary in this Agreement, Section 2.2 hereof shall not apply to a Block Trade initiated by a Demanding Holder pursuant to this Agreement.

 

2.4.4 The Demanding Holder in a Block Trade shall have the right to select the Underwriters for such Block Trade (which shall consist of one or more reputable nationally recognized investment banks).

 

2.4.5 A Demanding Holder in the aggregate may demand no more than (i) one (1) Block Trade pursuant to this Section 2.4 within any six (6) month period or (ii) two (2) Block Trades pursuant to this Section 2.4 in any twelve (12) month period.

 

Article III

Company Procedures

 

3.1 General Procedures. In connection with any Shelf and/or Shelf Takedown, the Company shall use its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall:

 

3.1.1 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 or sold in accordance with the intended plan of distribution set forth in such Registration Statement or have ceased to be Registrable Securities;

 

3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5.0%) 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 have ceased to be Registrable Securities;

 

3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”);

 

 

3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be reasonably necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;

 

3.1.5 use commercially reasonable efforts to cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by the Company are then listed;

 

3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;

 

3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

 

3.1.8 at least five (5) 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 (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.4), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);

 

3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4;

 

3.1.10 in the event of an Underwritten Offering, permit a representative of any Holder, the Underwriters, if any, and any attorney or accountant retained by such Holder(s) or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters agree to confidentiality arrangements reasonably satisfactory to the Company, prior to the release or disclosure of any such information;

 

 

3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering or other coordinated offering that is registered pursuant to a Registration Statement, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter or other similar type of sales agent or placement agent may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;

 

3.1.12 in the event of an Underwritten Offering, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, 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;

 

3.1.13 in the event of any Underwritten Offering or other coordinated offering that is registered pursuant to a Registration Statement, enter into and perform its obligations under an underwriting agreement, sales agreement or placement agreement, in usual and customary form, with the managing Underwriter, sales agent or placement agent of such offering;

 

3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);

 

3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25 million with respect to an Underwritten Offering pursuant to Section 2.1.4, use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and

 

3.1.16 otherwise, in good faith, cooperate reasonably and promptly with, and take such customary actions as may reasonably be requested by the Holders, consistent with the terms of this Agreement, in connection with such Registration.

 

Notwithstanding the foregoing, the Company shall not be required to provide any documents or information to an Underwriter or other sales agent or placement agent if such Underwriter or other sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other coordinated offering that is registered pursuant to a Registration Statement.

 

3.2 Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ or agents’ commissions and discounts, brokerage fees, and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.

 

 

3.3 Requirements for Participation in Registration Statement in Offerings. Notwithstanding anything in this Agreement to the contrary, if any Holder does not timely provide the Company with its requested Holder Information upon reasonable notice, 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 or advisable to effect the registration and such Holder continues thereafter to withhold such information. No person may participate in any Underwritten Offering or other coordinated offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s securities on the basis provided in any arrangements approved by the Company and (ii) timely completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting or other agreements and other customary documents as may be reasonably required under the terms of such arrangements. The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the registration of the other Registrable Securities to be included in such Registration.

 

3.4 Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights.

 

3.4.1 Upon receipt of written notice from the Company that: (a) a Registration Statement or Prospectus contains a Misstatement or (b) any request by the Commission for any amendment or supplement to any Registration Statement or Prospectus or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement or Prospectus, such Registration Statement or Prospectus will not contain an 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, each of the Holders shall forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement covering such Registrable Securities until it has received copies of a supplemented or amended Prospectus (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), until it is advised in writing by the Company that the use of the Prospectus may be resumed, and, if so directed by the Company, each such Holder will deliver to the Company all copies, other than permanent file copies then in such Holder’s possession, of the most recent Prospectus covering such Registrable Securities at the time of receipt of such notice.

 

3.4.2 Subject to Section 3.4.4, if the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require the Company to make an Adverse Disclosure, (b) require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, or (c) in the good faith judgment of the majority of the Board such Registration, be detrimental to the Company and the majority of the Board concludes as a result that it is advisable to defer such filing, initial effectiveness or continued use at such time, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than sixty (60) days, determined in good faith by the Company to be necessary for such purpose, provided that in each case the Company has furnished to the Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Company it would be seriously detrimental to the Company for such Registration Statement to be filed, become effective or be used in the near future and that it is therefore essential to defer the filing, initial effectiveness or continued use of such Registration Statement. In the event the Company exercises its rights under this Section 3.4.2, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities until such Holder receives written notice from the Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice and its contents.

 

 

3.4.3 (a) 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 and 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 Registration Statement, or (b) if, pursuant to Section 2.1.4, Holders have requested an Underwritten Shelf Takedown and the Company and 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 2.1.4 or 2.4.

 

3.4.4 The right to delay or suspend any filing, initial effectiveness or continued use of a Registration Statement pursuant to Section 3.4.2 or a registered offering pursuant to Section 3.4.3 shall be exercised by the Company, in the aggregate, not more than ninety (90) days in any twelve (12)-month period.

 

3.5 Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to use commercially reasonable efforts to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act 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 EDGAR shall be deemed to have been furnished or delivered to the Holders pursuant to this Section 3.5. The Company further covenants that it shall take such further action in a prompt manner as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Registrable Securities 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 then in effect). Upon the request of any Holder, the Company shall promptly deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.

 

Article IV
Indemnification and Contribution

 

4.1 Indemnification.

 

4.1.1 The Company agrees to indemnify and hold harmless, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors and agents and each person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including without limitation reasonable and documented outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are solely caused by or contained in any information or affidavit so furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.

 

4.1.2 In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits with respect to such Holder as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify and hold harmless the Company, its directors, officers and agents and each person who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including without limitation reasonable and documented outside attorneys’ fees) as incurred arising solely out of or resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue or alleged untrue statement or omission or alleged omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.

 

 

4.1.3 Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party (such consent not to be unreasonably withheld or delayed), 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 does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

4.1.4 The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.

 

4.1.5 If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or 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 under this Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.

 

 

Article V
Miscellaneous

 

5.1 Notices. All notices, requests, claims, demands 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 e-mailed during normal business hours (and otherwise as of the immediately following business day), addressed as follows:

 

If to the Company, to:

 

The Tomorrow Companies Inc.

9 Channel Center Street, 7^th Floor

Boston, MA 02127

Attention: Chief Executive Officer

 

with copies (which shall not constitute notice) to:

 

Goodwin Procter LLP

100 Northern Ave.

Boston, MA 02210

	Attention:	William J. Schnoor
		Paul R. Rosie

 

If to any Holder, to such address indicated on the Company’s records with respect to such Holder or to such other address or addresses as such Holder may from time to time designate in writing.

 

5.2 Assignment; No Third Party Beneficiaries.

 

5.2.1 This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.

 

5.2.2 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 have not ceased to be Registrable Securities following such transfer and such person agrees to become bound by the terms and provisions of this Agreement.

 

5.2.3 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 5.1 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement).

 

 

5.2.4 Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns, which shall include Permitted Transferees. Any attempted assignment in violation of the terms of this Section 5.2 shall be null and void, ab initio.

 

5.2.5 This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.2 hereof.

 

5.3 Captions; Counterparts. The headings, subheadings and captions contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement and any amendment hereto may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement or any amendment hereto by electronic means, including docusign, e-mail, or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement or any amendment hereto.

 

5.4 Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.

 

5.5 Jurisdiction; Waiver of Jury Trial.

 

5.5.1 Each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court of the State of Delaware, for the purposes of any Action (a) arising under this Agreement or (b) in any way connected with or related or incidental to the dealings of the parties hereto in respect of this Agreement, and irrevocably and unconditionally waives any objection to the laying of venue of any such Action in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Action has been brought in an inconvenient forum. Each party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action against such party (i) arising under this Agreement or (ii) in any way connected with or related or incidental to the dealings of the parties hereto in respect of this Agreement, (A) any claim that such party is not personally subject to the jurisdiction of the courts as described in this Section 5.5 for any reason, (B) that such party or such party’s property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Action in any such court is brought against such party in an inconvenient forum, (y) the venue of such Action against such party is improper or (z) this Agreement, or the subject matter hereof, may not be enforced against such party in or by such courts. Each party agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 5.5 shall be effective service of process for any such Action.

 

 

5.5.2 THE PARTIES HERETO EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR UNDER ANY ANCILLARY DOCUMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES HERETO EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH PROCEEDING, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) 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, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.5.

 

5.6 Amendments and Modifications. Upon the written consent of (a) the Company and (b) the Holders of a majority of the total Registrable Securities as of the time of any waiver or amendment, 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 or amendment would be disproportionate and adverse in any material respect to the material rights or obligations hereunder of a Holder in a manner that is different from the other Holders (in such capacity), 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.

 

5.7 Termination 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 Tomorrow.io granted under any other agreement, including, without limitation, the Registration Rights Agreement, dated as of March 10, 2021, by and among the Company and the Sponsor, and the Fifth Amended and Restated Investors’ Rights Agreement, dated as of March 15, 2021, by and among Tomorrow.io and its stockholders party thereto, and any of such preexisting registration, qualification or similar rights and such agreements shall be terminated and of no further force and effect. Other than the PIPE Investors who each have registration rights with respect to their shares of Common Stock pursuant to the Subscription Agreements, the Company represents and warrants that no person, other than a Holder of Registrable Securities has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration filed by the Company for the sale of securities for its own account or for the account of any other person. Further, the Company represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail, excluding the Subscription Agreements.

 

5.8 Term. This Agreement shall terminate with respect to any Holder on the date that such Holder no longer holds any Registrable Securities. The provisions of Section 3.5 and Article IV shall survive any termination.

 

 

5.9 Termination if Merger Agreement is Terminated. In the event the Merger Agreement is terminated in accordance with its terms, this Agreement shall automatically terminate and be of no further force and effect, except for Article IV and Sections 5.1, 5.4, and 5.5, which shall survive such termination.

 

5.10 Holder Information. Each Holder agrees, if requested in writing, to represent to the Company the total number of Registrable Securities held by such Holder in order for the Company to make determinations hereunder.

 

5.11 Board Observer. For so long as the Sponsor continues to own shares of Common Stock which represent at least 25% of the number of shares of Common Stock owned as of the date of this Agreement, the Company shall invite the Sponsor to send one representative to attend, in a non-voting observer capacity, all meetings of the Board, and shall give such representative copies (at the same time and in the same manner) of all notices, minutes, consents and other materials that the Company provides to its directors when and as provided; provided, however, that the Company reserves the right to exclude such representative from access to any material or meeting or portion thereof if it reasonably determines that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information, to avoid a conflict of interest or for other similar reasons.

 

5.12 Severability. It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

 

5.13 Specific Performance. Each of the parties acknowledges and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached or violated. Accordingly, to the fullest extent permitted by law, each of the parties agrees that, without posting bond or other undertaking, the other parties will be entitled to an injunction or injunctions to prevent breaches or violations of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action, claim or suit in addition to any other remedy to which it may be entitled, at law or in equity. Each party further agrees that, in the event of any action for specific performance in respect of such breach or violation, it will not assert that the defense that a remedy at law would be adequate.

 

[SIGNATURE PAGES FOLLOW]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	COMPANY:
	THE TOMORROW COMPANIES INC.
	By:
		Name:
		Title:

 

[Signature Page to Registration Rights Agreement]

 

 

	HOLDERS:
	By:
		Name:
		Title:

 

[Signature Page to Registration Rights Agreement]

 

 

	SPONSOR:
	By:
		Name:
		Title:

 

[Signature Page to Registration Rights Agreement]

 

 

	[TOMORROW.IO EQUITYHOLDER]
	By:
		Name:
		Title:

 

[Signature Page to Registration Rights Agreement]

 

 

Schedule A

 

Tomorrow.io Equityholders

 

 

 

Exhibit 10.5 

 

LOCK-UP AGREEMENT

 

THIS LOCK-UP AGREEMENT (this “Agreement”) is made and entered into as of _________________, 2021 by and between (a) Pine Technology Acquisition Corp., a Delaware corporation (the “Acquiror” and the successor-in-interest to Acquiror following the consummation of the transactions contemplated by the Merger Agreement (as defined below), the “Company”), and (b) the person or entity identified under the heading “Holder” on the signature page hereto (“Holder”). Capitalized terms used but not otherwise defined in this Agreement will have the meanings ascribed to such terms in the Agreement and Plan of Merger, dated as of December 7, 2021, by and among The Tomorrow Companies Inc., a Delaware corporation, Acquiror and Pine Technology Merger Corp., a Delaware corporation and a direct wholly owned subsidiary of Acquiror (as it may be amended or supplemented from time to time, the “Merger Agreement”).

 

WHEREAS, in connection with the Merger Agreement, and in view of the valuable consideration to be received by the parties thereunder, the parties desire to enter into this Agreement, pursuant to which the Restricted Securities (as defined below), shall become subject to limitations on disposition as set forth herein.

 

NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:

 

1. Lock-Up Provisions.

 

(a) The Holder hereby agrees not to, during the period commencing from the Closing and through the first anniversary of the date of the Closing (the “Lock-Up Period”): (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase, make any short sale or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder, with respect to any Restricted Securities or (ii) enter into any swap or hedging or other arrangement which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Restricted Securities, or that transfers to another, in whole or in part, any of the economic consequences of ownership of any Restricted Securities, whether any such transaction described in clauses (i) or (ii) above is to be settled by delivery of such securities, in cash or otherwise (any of the foregoing described in clauses (i) or (ii), a “Prohibited Transfer”); provided, for the avoidance of doubt, that nothing in this Agreement shall restrict any Holder’s right to cause the Company to file and cause to become effective a registration statement with the SEC naming such Holder as a selling securityholder (and to make any required disclosures on Schedule 13D in respect thereof). Notwithstanding the foregoing, the Lock-Up Period and restrictions set forth in this Section 1 shall not apply:

 

(A) to the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Restricted Securities; provided, that such plan does not provide for the transfer of Restricted Securities during the Lock-Up Period;

 

 

(B) to the transfer of any or all of the Restricted Securities by a bona fide gift or charitable contribution;

 

(C) to the transfer of any or all of the Restricted Securities by will or intestate succession upon the death of the Holder or any Permitted Transferee;

 

(D) to the transfer of any or all of the Restricted Securities to any Permitted Transferee;

 

(E) to a transfer relating to Common Stock or other securities convertible into or exercisable or exchangeable for Common Stock acquired in open market transactions after the Closing;

 

(F) to the transfer pursuant to a qualified domestic order or in connection with a divorce settlement or any related court order;

 

(G) to the transfer of any Common Stock or other securities acquired as part of the Private Placement;

 

(H) if the closing price of Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the date of Closing;

 

(I) in the event of the Company’s completion of 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; or

 

(J) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (A) through (I) above;

 

provided, however, that in the case of (B), (C), (D) or (J), it shall be a condition to such transfer that the transferee executes and delivers to the Company an agreement stating that the transferee is receiving and holding the Restricted Securities subject to the provisions of this Agreement applicable to such holder, and there shall be no further transfer of such Restricted Securities except in accordance with this Agreement; provided, further, that in the case of (B) or (C), such transfer or distribution shall not involve a disposition for value.

 

As used in this Agreement, the term “Restricted Securities” shall mean (i) with respect to Sponsor or its transferees, the Parent Class A Shares (including shares of common stock of the Company issued upon the conversion, exchange or reclassification of Parent Class A Shares (“Common Stock”)) received by Sponsor at the Closing upon the automatic conversion of the Parent Class B Shares held by Sponsor or its transferees, and (ii) with respect to each other Holder (a) any Common Stock held by the Holder immediately after the Effective Time, (b) any Common Stock issuable upon exercise or settlement of options or restricted stock units with respect to Common Stock held by the Holder immediately after the Effective Time and (c) any securities convertible into or exercisable or exchangeable for Common Stock held by the Holder immediately after the Effective Time.

 

 

As used in this Agreement, the term “Permitted Transferee” shall mean:

 

(i) any direct or indirect general partner, limited partner, shareholder, member or owner of similar equity interests in the Holder or any related investment funds or vehicles controlled or managed by such Persons or their respective Affiliates;

 

(ii) a trust, or other entity formed for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or grandchild of the Holder or any other person with whom the Holder has a relationship by blood, marriage or adoption not more remote than first cousin; or

 

(iii) any Affiliate of the Holder.

 

The Holder further agrees to execute such agreements as may be reasonably requested by the Company that are consistent with the foregoing or that are necessary to give further effect thereto.

 

(b) If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer shall be null and void ab initio, and the Company shall refuse to recognize any such purported transferee of the Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 1, the Company may impose stop-transfer instructions with respect to the Restricted Securities (and permitted transferees and assigns thereof) until the end of the Lock-Up Period.

 

(c) During the Lock-Up Period, each certificate or book-entry position evidencing any Restricted Securities shall be marked with a legend in substantially the following form, in addition to any other applicable legends:

 

“THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT BY AND BETWEEN THE ISSUER OF SUCH SECURITIES AND THE REGISTERED HOLDER OF THE SHARES (OR THE PREDECESSOR IN INTEREST TO THE SECURITIES). A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”

 

(d) For the avoidance of doubt, the Holder shall retain all of its rights as a stockholder of the Company with respect to the Restricted Securities during the Lock-Up Period, including the right to vote any Restricted Securities that are entitled to vote. The Company agrees to (i) instruct its transfer agent to remove the legend in clause (c) immediately above upon the expiration of the Lock-Up Period and (ii) if requested by the transfer agent, cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under subclause (i).

 

 

2. Miscellaneous.

 

(a) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any of the parties, in whole or in part (including by operation of law), without the prior written consent of the other parties hereto, which any such party may withhold in its absolute discretion.

 

(b) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing in this Agreement expressed or implied shall give or be construed to give to any person or entity, other than the parties hereto and such successors and permitted assigns, any legal or equitable rights under this Agreement.

 

(c) Governing Law; Jurisdiction.

 

(A) This Agreement and all disputes, claims or controversies relating to, arising out of, or in connection with this Agreement shall be governed by and construed in accordance with the internal Laws of the State of Delaware applicable to contracts executed in and to be performed in the State of Delaware, without giving effect to any choice of Law or conflict of Laws rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

 

(B) Each party irrevocably agrees that any Action arising out of or relating to this Agreement brought by any other party or its successors or assigns shall be brought and determined 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 it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each party hereby irrevocably consents and submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such Action arising out of or relating to this Agreement and the transactions contemplated hereby. Each party agrees not to commence any Action relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action arising out of or relating to this Agreement or the transactions contemplated hereby, (i) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason and (ii) that (1) the Action in any such court is brought in an inconvenient forum, (2) the venue of such Action is improper or (3) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each party agrees that a final, non-appealable judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law.

 

 

(d) WAIVER OF JURY TRIAL. 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 IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS 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) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (iii) IT MAKES SUCH WAIVER VOLUNTARILY AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 2(D).

 

(e) Interpretation. The headings, titles and subtitles set forth in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Except when the context requires otherwise, any reference in this Agreement to any Section or clause shall be to the Sections and clauses of this Agreement. The words “herein,” “hereto,” “hereof” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement. The term “or” means “and/or”. The words “include,” “includes” and “including” are deemed to be followed by the phrase “without limitation”. Reference to any person includes such person’s successors and assigns to the extent such successors and assigns are permitted by the terms of any applicable agreement, and reference to a person in a particular capacity excludes such person in any other capacity or individually. Reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof. Reference to any Law means such Law as amended, modified, codified, replaced or re-enacted, in whole or in part, including rules, regulations, enforcement procedures and any interpretations promulgated thereunder, all as in effect on the date of this Agreement. Any reference to the masculine, feminine or neuter gender shall include such other genders and any reference to the singular or plural shall include the other, in each case unless the context otherwise requires.

 

(f) No Presumption Against Drafting Party. Each of the parties acknowledges that it has participated jointly in the negotiation and drafting of this Agreement and has been represented by counsel in connection with this Agreement and the transactions contemplated hereby. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.

 

 

(g) Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or electronic mail or postage prepaid mail (registered or certified) or nationally recognized overnight courier service and shall be deemed given when so delivered by hand or electronic mail, or if mailed, three (3) days after mailing (one Business Day in the case of overnight courier service), as follows:

 

If to the Company, to:

 

9 Channel Center St., 7^th Floor

Boston, MA 02127

	Attention:	Chief Executive Officer
	Email:	####

 

with a copy (which shall not constitute notice) to:

 

Goodwin Procter LLP

100 Northern Avenue

Boston, Massachusetts 02210

	Attention:	William J. Schnoor
		Paul R. Rosie
	E-mail:	[email protected]
		[email protected]

 

If to the Holder, to the address set forth on the Holder’s signature page hereto.

 

Notices or other communications to any other Holder that becomes a party hereto pursuant to Section 1 shall be delivered to the address set forth in the applicable joinder agreement or other instrument executed by such Holder and binding such Holder to the terms of this Agreement.

 

(h) Amendments and Waivers. Prior to Closing, only upon the written consent of the Company, and following closing, only upon the approval by (i) a majority of the members of the Board of Directors of the Company then in office that qualify as “independent” for purposes of audit committee membership under Section 10A-3 under the Exchange Act and (ii) the director designated by Sponsor pursuant to the Merger Agreement (such approval not to be unreasonably withheld or delayed), compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived by the Company, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects the Holder, solely in its capacity as a holder of Restricted Securities, shall require the consent of the Holder. No provision of this Agreement may be waived unless such waiver is in writing and signed by the party or parties against whom such waiver is to be effective. No failure or delay of any 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 hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

 

(i) Severability. It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

 

 

(j) Specific Performance. The parties agree that irreparable damage would 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 Company shall be entitled to an injunction or injunctions to prevent breaches of this Agreement by a Holder and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which any party is entitled at law or in equity. In the event that any Action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.

 

(k) Entire Agreement. This Agreement constitutes the full and entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Merger Agreement or any documents related thereto or referred to therein. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of the Company or any of the obligations of the Holder under any other agreement between the Holder and the Company or any certificate or instrument executed by the Holder in favor of the Company, and nothing in any other agreement, certificate or instrument shall limit any of the rights or remedies of the Company or any of the obligations of the Holder under this Agreement.

 

(l) Further Assurances. From time to time, at another party’s request and without further consideration (but at the requesting party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.

 

(m) Execution of Agreement. This Agreement may be executed in one (1) or more counterparts, all of which shall be considered one (1) and the same agreement, and shall become effective when one (1) or more such counterparts have been signed by each of the parties and delivered to the other party. Facsimile or electronic mail transmission of counterpart signatures to this Agreement shall be acceptable and binding.

 

(n) Termination. In the event the Merger Agreement is terminated in accordance with its terms, this Agreement shall automatically terminate and be of no further force and effect.

 

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

 

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

	company:
	PINE TECHNOLOGY ACQUISITION CORP.
	By:
		Name:
		Title:

 

[Signature Page to Lock-Up Agreement]

 

 

	HOLDER:
	By:
	Name:
	Title:

 

[Signature Page to Lock-Up Agreement]

 

 

 

 

Exhibit 10.6

 

THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

 

PROMISSORY NOTE

 

Principal Amount: $350,000 Interest: 0.33% per annum

Dated as of December 6, 2021 New York, New York

 

Pine Technology Acquisition Corp., a Delaware corporation and blank check company (the “Maker”), promises to pay to the order of Pine Technology Sponsor LLC or its registered assigns or successors in interest (the “Payee”), or order, the principal sum of Three Hundred Fifty Thousand Dollars ($350,000) in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Note.

 

1. Principal. The principal balance of this Note shall be payable by the Maker on the earlier of: (i) March 15, 2023 or (ii) the date on which Maker consummates an initial business combination as contemplated by its amended and restated certificate of incorporation dated March 10, 2021 (the “Charter”). The principal balance may be prepaid at any time. Under no circumstances shall any individual, including but not limited to any officer, director, employee or shareholder of the Maker, be obligated personally for any obligations or liabilities of the Maker hereunder.

 

2. Interest. This Note shall bear interest at 0.33% per annum, which interest shall be payable concurrent with the payment of the principal balance of this Note.

 

3. Advancement of Funds. Maker and Payee acknowledge that on or about the date hereof, Payee has advanced to Maker $350,000, the entire amount of the principal of this Note, by check or wire transfer of immediately available funds or as otherwise determined by the Payee and Maker.

 

4. Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorney’s fees, then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of and interest accrued on this Note.

 

5. Events of Default. The following shall constitute an event of default (“Event of Default”):

 

(a) Failure to Make Required Payments. Failure by Maker to pay the principal amount or interest due pursuant to this Note within five (5) business days of the date specified above.

 

(b) Voluntary Bankruptcy, Etc. The commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action by Maker in furtherance of any of the foregoing.

 

(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days.

 

 

6. Remedies.

 

(a) Upon the occurrence of an Event of Default specified in Section 5(a) hereof, Payee may, by written notice to Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of and interest accrued on this Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.

 

(b) Upon the occurrence of an Event of Default specified in Sections 5(b) and 5(c), the unpaid principal balance of and interest accrued on this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part of Payee.

 

7. Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof or any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.

 

8. Unconditional Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to Maker or affecting Maker’s liability hereunder.

 

9. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in writing and delivered: (i) personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party or (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.

 

10. Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.

 

11. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

12. Trust Waiver. Notwithstanding anything herein to the contrary, prior to the consummation of Maker’s initial business combination as contemplated by its Charter, the Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any distribution of or from the trust account established in which the proceeds of the initial public offering (the “IPO”) conducted by the Maker (including the deferred underwriters discounts and commissions) and the proceeds of the sale of the warrants issued in a private placement in connection with the IPO were deposited, as described in greater detail in the registration statement and prospectus filed with the Securities and Exchange Commission in connection with the IPO, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the trust account for any reason whatsoever prior to the consummation of Maker’s initial business combination as contemplated by its Charter.

  

13. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee.

 

14. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void.

 

 

IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.

`

	PINE TECHNOLOGY ACQUISITION CORP.
	By:	/s/ Adam Karkowsky
		Name:	Adam Karkowsky
		Title:	Chairman

 

[Signature Page to Promissory Note]

 

 

Accepted and agreed this 6th day of December, 2021.

 

	PINE TECHNOLOGY SPONSOR LLC
	By: Peel Acquisition Company II, LLC, its Managing Member
	By:	/s/ Barry D. Zyskind
		Name:	Barry D. Zyskind
		Title:	Manager

 

[Signature Page to Promissory Note]

 

 

4

Exhibit 99.1

 

Tomorrow.io, the World’s Weather and Climate Security Platform, to Go Public on Nasdaq Through Merger with Pine Technology Acquisition Corp.

 

●

Tomorrow.io’s proprietary Weather and Climate Security Platform gives businesses, governments, and individuals tools to automate decision making and enable climate adaptation at scale.

●

Clients include Uber Technologies, Ford Motor Company, Delta Airlines, JetBlue Airways, National Grid and the U.S. Air Force.

●

The transaction will fund growth and accelerate product development for Tomorrow.io’s forecasting capabilities and planned launch of radar-equipped satellites.

●

Pro-forma equity value of the combined company is approximately $1.2 billion.

●

Tomorrow.io expects to receive up to $420 million in gross transaction proceeds (assuming no redemptions).

●

Transaction includes a $75 million fully-committed PIPE anchored by institutional and strategic investors including Koch Strategic Platforms, National Grid Partners, JetBlue Technology Ventures, SB Energy Corp., SoftBank Group’s Japanese wholly-owned subsidiary, as well as Pine Technology’s sponsor, Pine Technology Sponsor LLC., who are all investing in the PIPE at $10 per share.

 

BOSTON, MA and AURORA, OH – December 7, 2021 – The Tomorrow Companies Inc. (“Tomorrow.io”), developer of a leading platform for global weather and climate security, and Pine Technology Acquisition Corp. (Nasdaq: PTOC, PTOCW, PTOCU), a special purpose acquisition company (“Pine Technology”), today announced they have entered into a definitive merger agreement that would result in Tomorrow.io becoming a public company. Upon closing of the business combination, the newly combined company will operate as Tomorrow.io and trade on Nasdaq under the symbol “TMW.”

 

Tomorrow.io is a high-growth SaaS company backed by sophisticated technology with an ESG mission to significantly improve weather forecasting (Environmental), protect communities and save lives globally (Social) and enable countries, businesses and individuals to prepare for weather events and climate change (Governance).

 

In 2020, weather events caused losses of more than $100 billion in the United States. Spending on weather and climate services will reach an estimated $190 billion by 2030, up from an estimated $89 billion in 2020, based on actual and forecast compound annual growth rates (CAGR).

 

Tomorrow.io’s mission is to help countries and businesses prepare for the business impact of weather by automating decision-making and enabling climate adaptation at scale. Its Weather and Climate Security Platform delivers operational weather insights for global customers across a broad range of industries, including aviation, energy, insurance, on-demand companies, professional sports and venues, and logistics, as well as government agencies around the world.

 

By leveraging the platform’s proprietary weather intelligence—which uses machine learning to translate hyperlocal forecasts into actionable insights—users can proactively address weather- and climate-related challenges.

 

 

“Tomorrow.io was founded with the mission to improve global access to weather intelligence for all,” said Shimon Elkabetz, Co-founder and CEO of Tomorrow.io. “Today, this mission is more important than ever against the backdrop of a changing climate. Every individual, business, and government is embracing climate adaptation and mitigation,” he said. “This is exactly the solution that Tomorrow.io provides—a unique software offering that translates the weather forecast into insights for any industry, allowing customers to proactively prepare for the impact of incoming weather across their operations. We are thrilled to partner with Pine Technology to accelerate our product development and plans for a global satellite constellation.”

 

To advance weather and climate forecasting on a global scale, Tomorrow.io is developing a first-of-its-kind constellation of radar-equipped satellites, with initial launches planned for late 2022. The satellites are expected to provide the first-ever global precipitation dataset updated hourly along with other critical weather and ocean parameters. Tomorrow.io believes this dramatic increase in monitoring capabilities will enable better forecasts everywhere, especially in data-sparse areas that currently lack reliable forecasts, yet are the most vulnerable to weather fluctuation and climate change.

 

Pine Technology brings decades of transaction execution expertise and valuable strategic counsel to Tomorrow.io.

 

“Shimon and the impressive Tomorrow.io leadership team have deep expertise in weather, radar technology, and decision support software,” said Adam Karkowsky, Non-Executive Chairman of Pine Technology. “They have built a vertically integrated company that delivers exceptional value to their global commercial and government customers. Tomorrow.io is leading the way with its world-class weather forecasting operation and modern SaaS-based approach to meet the growing need for weather and climate security,” he said. “With our experience supporting high-growth companies and our vast network of contacts that offer new customer opportunities, we believe we can help deliver long-term value for all stockholders.”

 

Transaction Summary

 

The pro forma equity value of the combined company is approximately $1.2 billion, assuming no redemptions by Pine Technology stockholders. The transaction will provide up to $420 million of gross proceeds, before deducting transaction expenses and assuming no redemptions, including $75 million through a fully-committed PIPE at $10.00 per share. The PIPE includes commitments from institutional investors including funds managed by Koch Strategic Platforms, National Grid Partners, JetBlue Technology Ventures, SB Energy Corp., SoftBank Group’s Japanese wholly-owned subsidiary, as well as Pine Technology’s sponsor, Pine Technology Sponsor LLC.

 

The transaction, which has been approved by the Boards of Directors of Tomorrow.io and Pine Technology, is subject to approval by Pine Technology stockholders and other customary closing conditions, including the receipt of certain regulatory approvals and is expected to close in the first half of 2022.

 

Additional information about the proposed transaction, including a copy of the merger agreement and investor presentation, will be provided in a Current Report on Form 8-K to be filed by Pine Technology with the Securities and Exchange Commission (“SEC”) and will be available at www.sec.gov.

 

 

Advisors

 

PJT Partners is acting as sole financial advisor, and Goodwin Procter LLP is acting as legal counsel to Tomorrow.io. Moelis & Company LLC is acting as sole financial advisor to Pine Technology. Paul, Weiss, Rifkind, Wharton & Garrison LLP is acting as legal counsel to Pine Technology. Cantor Fitzgerald & Co. and Odeon Capital Group are serving as capital markets advisors to Pine Technology. Houlihan Lokey, Inc. and Richards, Layton & Finger P.A. are advising the Board of Directors of Pine Technology.

 

Moelis & Company LLC and PJT Partners are acting as joint placement agents with respect to the private placement. Sullivan & Cromwell LLP is acting as placement agent counsel.

 

Investor Webcast Information

 

A webcast is available at pinetechnology.com where you can also find the detailed investor presentation and press release.

 

About Pine Technology Acquisition Corp.:

 

Pine Technology Acquisition Corp. is a special purpose acquisition company (SPAC) formed for the purpose of targeting one or more businesses in the insurance-related technology (InsurTech) sector for its initial business combination. Pine Technology is led by CEO and Director Christopher Longo, the Founder and CEO of tech-focused commercial insurance managing general agent and brokerage, Novum Underwriting Partners, and the former CIO and COO of AmTrust Financial Services, Inc. (AmTrust) and non-Executive Chairman Adam Karkowsky, who currently serves as the President of AmTrust. Pine Technology Acquisition Corp. was founded in December 2020 and its Units, Class A common stock and warrants are listed on the Nasdaq under the symbols PTOCU, PTOC, and PTOCW, respectively.

 

About Tomorrow.io:

 

Tomorrow.io is The World’s Weather and Climate Security Platform, helping countries, businesses, and individuals manage their weather and climate security challenges. Fully customizable to any industry impacted by the weather, customers around the world including Uber, Delta, Ford, National Grid, and more use Tomorrow.io to dramatically improve operational efficiency. Tomorrow.io was built from the ground up to help teams prepare for the business impact of weather by automating decision-making and enabling climate adaptation at scale. Headquartered in Boston, MA, Tomorrow.io employs more than 170 people globally.

 

Forward-Looking Statements

 

This press release includes, and oral statement made from time to time by representatives of Pine Technology and Tomorrow.io may contain, statements that are not historical facts but are forward looking statements for purposes of the safe harbor provisions under applicable securities laws, including the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “could,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “target,” “goal,” “expect,” “should,” “would,” “plan,” “predict,” “project,” “forecast,” “potential,” “seem,” “seek,” “future,” “outlook,” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding projections, estimates and forecasts of revenue and other financial and performance metrics and projections of market opportunity and expectations, the expected cash proceeds from the transaction, the ability to complete the business combination due to the failure to obtain approval from Pine Technology’s stockholders or satisfy other closing conditions in the business combination agreement, the occurrence of any event that could give rise to the termination of the business combination agreement, the ability to recognize the anticipated benefits of the business combination, the amount of redemption requests made by Pine Technology’s public stockholders, the estimated implied equity value of the combined company, Tomorrow.io’s ability to effectively compete in its industry, Tomorrow.io’s ability to scale and grow its business, including the timing of the planned satellite launches in late 2022, the cash position of the combined company following closing and the timing of the closing of the business combination. 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. You should carefully consider the risks and uncertainties described in Pine Technology’s final prospectus, filed with the SEC on March 11, 2021 (the “Pine Technology Final Prospectus”), and Quarterly Report on Form 10-Q for the quarter ended September 30, 2021, in each case, under the heading “Risk Factors,” and other documents of Pine Technology filed, or to be filed, including the proxy statement/prospectus, with the SEC. There may be additional risks that Pine Technology and Tomorrow.io presently do not know or that they currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect Pine Technology’s and Tomorrow.io’s expectations, plans or forecasts of future events and views as of the date of this press release. Pine Technology and Tomorrow.io anticipate that subsequent events and developments will cause their assessments to change. However, while Pine Technology and Tomorrow.io may elect to update these forward-looking statements at some point in the future, Pine Technology and Tomorrow.io specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing Pine Technology’s and Tomorrow.io’s assessments as of any date subsequent to the date of this press release. Accordingly, undue reliance should not be placed upon the forward-looking statements.

 

 

Additional Information and Where to Find It

 

This press release is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the transaction and does not constitute an offer to sell, buy or exchange or the solicitation of an offer to sell, buy or exchange any securities or the solicitation of any vote or approval in any jurisdiction, nor shall there be any sale, purchase, or exchange of securities or solicitation of any vote or approval in any jurisdiction in contravention of applicable law.

 

In connection with the proposed transaction between Pine Technology and Tomorrow.io, Pine Technology will file with the SEC a registration statement on Form S-4 which will include Pine Technology’s prospectus and proxy statement (the “Proxy Statement/Prospectus”). Pine Technology plans to mail the definitive Proxy Statement/Prospectus to its stockholders in connection with the transaction once available. INVESTORS AND SECURITYHOLDERS OF PINE TECHNOLOGY ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS AND OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT PINE TECHNOLOGY, TOMORROW.IO, THE TRANSACTION AND RELATED MATTERS. Investors and security holders will be able to obtain free copies of the Proxy Statement/Prospectus (when available) and other documents filed with the SEC by Pine Technology through the website maintained by the SEC at www.sec.gov. In addition, investors and security holders will be able to obtain free copies of the documents filed with the SEC by contacting Pine Technology or Tomorrow.io using the contact information below.

 

Participants in the Solicitation

 

Pine Technology, Tomorrow.io and certain of their respective directors, executive officers and employees may be considered to be participants in the solicitation of proxies in connection with the transaction. Information regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of the stockholders of Pine Technology in connection with the transaction, including a description of their respective direct or indirect interests, by security holdings or otherwise, will be included in the Proxy Statement/Prospectus described above when it is filed with the SEC. Additional information regarding Pine Technology’s directors and executive officers can also be found in the Pine Technology Final Prospectus. These documents are available free of charge as described above.

 

Contacts

 

Media

ICR Inc

[email protected]

 

Investors

ICR Inc

[email protected]

 

 

4

 

Exhibit 99.2

 

The Weather Intelligence Platform for Global Climate Security December 2021

Proprietary and Confidential 2 About This Presentation This Presentation is being provided for informational purposes only and has been prepared to assist interested parties solely in their capacities as potential investors and is provided solely for the purpose of allowing interested parties to make their o wn evaluation with respect to the proposed business combination (the “Business Combination”) between The Tomorrow Companies Inc. (together with its subsidiarie s, the “Company” or “ Tomorrow.io ”) and Pine Technology Acquisition Corp. (“PTAC” or the “SPAC”). Neither this Presentation, nor any of the information contained herein, is intended to be used by the recipient for any other purpose or distributed to any third party without the ex press written consent of the Company. The information contained herein has not been independently verified does not purport t o b e all - inclusive and none of PTAC, the Company or their respective affiliates nor any of its or their control persons, officers, directors, employees or r epr esentatives makes any representation or warranty, express or implied, and no reliance should be made as to the accuracy, comp let eness or reliability of the information contained in this Presentation. None of PTAC, the Company, or their respective affiliates nor any of its or their co ntrol persons, officers, directors, employees or representatives shall have any liability whatsoever (in negligence or otherw ise ) for any loss howsoever arising from any use of this Presentation or its contents or otherwise arising in connection with this Presentation. The contents herein a re not to be construed as legal, business or tax advice, and the recipient should consult his, her or its own attorney, business ad visor and tax advisor as to legal, business and tax advice. The information contained in this Presentation should be considered in the context of the circumstan ces prevailing at the time and has not been, and will not be updated to reflect material developments which may occur after the d at e of this document. Important Information for Investors and Securityholders This Presentation is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securitie s o r in respect of the Business Combination and does not constitute an offer to sell, buy or exchange or the solicitation of an off er to sell, buy or exchange any securities or the solicitation of any vote or approval in any jurisdiction, nor shall there be any sale, purchase, or exchang e o f securities or solicitation of any vote or approval in any jurisdiction in contravention of applicable law. In connection with the proposed Business Combination between PTAC and Tomorrow.io , PTAC will file with the U.S. Securities and Exchange Commission (the “SEC”) a registration statement on Form S - 4 which will in clude PTAC’s prospectus and proxy statement (the “Proxy Statement/Prospectus”). PTAC plans to mail the definitive Proxy Statement/Prospectus to its stockholders in connection with t he Business Combination once available. INVESTORS AND SECURITYHOLDERS OF PTAC ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS A ND OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMP ORT ANT INFORMATION ABOUT PTAC, TOMORROW.IO, THE BUSINESS COMBINATION AND RELATED MATTERS. Investors and security holders will be able to obtain free copies of the Proxy Statement/Prospectus (when available) and other document s f iled with the SEC by PTAC through the website maintained by the SEC at www.sec.gov . In addition, investors and security holders will be able to obtain free copies of the documents filed with the SEC by directing a request to PTAC. Participants in the Solicitation PTAC, Tomorrow.io and certain of their respective directors, executive officers and employees may be considered to be participants in the solic it ation of proxies in connection with the Business Combination. Information regarding the persons who may, under the rules of t he SEC, be deemed participants in the solicitation of the stockholders of PTAC in connection with the Business Combination, including a des cription of their respective direct or indirect interests, by security holdings or otherwise, will be included in the Proxy S tat ement/Prospectus described above when it is filed with the SEC. Additional information regarding PTAC’s directors and executive officers can also be found in PTA C’s final prospectus dated March 10, 2021 relating to its initial public offering (the “PTAC Final Prospectus”). These docume nts are available free of charge as described above. Forward - Looking Statements Certain statements, estimates, targets and projections in this Presentation may be considered “forward - looking statements” withi n the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Actual r esu lts may differ from their expectations, estimates and projections and consequently, you should not rely on these forward - looking statements as predictions of future events or future performance of PTAC or the Company. For example, projections of future EBITDA and projected satell it e launch, statements regarding anticipated growth in the industry in which the Company operates and anticipated growth in demand for the Company’s pr oducts, projections of the Company’s future technological capabilities, product offerings, financial results, Revenue, Gross Mar gin, capital expenditures, unlevered free cash flow, and other metrics, and any statements related to the satisfaction of closing conditions to the Busi nes s Combination and the timing of the completion of the Business Combination are forward - looking statements. In some cases, you ca n identify forward - looking statements through the use of words or phrases such as “pro forma”, “may”, “should”, “could”, “might”, “possible”, “project”, “s trive”, “budget”, “forecast”, “intend”, “estimate”, “anticipate”, “predict”, “potential”, “believe”, “will likely result”, “e xpe ct”, “continue”, “will”, “anticipate”, “seek”, “estimate”, “intend”, “plan”, “projection”, “would” and “outlook”, or the negative version of those words or phrases or other co mparable words or phrases of a future or forward-looking nature. These forward - looking statements are not historical facts and a re based upon estimates and assumptions that, while considered reasonable by PTAC and its management, and the Company and its management, as the case may be , are inherently uncertain. Such forward - looking statements are subject to risks, uncertainties, and other factors which could c ause actual results to differ materially from those expressed or implied by such forward - looking statements. Such factors include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of negotiations an d a ny subsequent definitive agreements with respect to the Business Combination; (2) the outcome of any legal proceedings that may be instituted against PTA C, the Company, the combined company or others following the announcement of the Business Combination and any definitive agre eme nts with respect thereto; (3) the inability to complete the Business Combination due to the failure to obtain approval of the stockholders of PTA C or the Company, to obtain financing to complete the Business Combination or to satisfy other conditions to closing; (4) cha nge s to the proposed structure of the Business Combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to o bta ining regulatory approval of the Business Combination; (5) the ability to meet stock exchange listing standards following the co nsummation of the Business Combination; (6) the risk that the Business Combination disrupts current plans and operations of PTAC or the Company as a res ult of the announcement and consummation of the Business Combination; (7) the ability to recognize the anticipated benefits of th e Business Combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth prof ita bly, maintain relationships with customers and retain its management and key employees; (8) costs related to the Business Com bin ation; (9) changes in applicable laws or regulations and delays in obtaining, adverse conditions contained in, or the inability to obtain regulator y a pprovals required to complete the Business Combination; (10) the possibility that the Company or the combined company may be adv ersely affected by other economic, business, regulatory, and/or competitive factors; (11) the Company’s estimates of expenses and profitability and un der lying assumptions with respect to stockholder redemptions; (12) the evolution of the markets in which the Company competes; ( 13) the ability of the Company to implement its strategic initiatives and continue to innovate its existing services; (14) the ability of the Company to def end its intellectual property and satisfy regulatory requirements; (15) the impact of the COVID - 19 pandemic on the Company’s busine ss; (16) the Company’s expected capital requirements and ability to raise financing in the future; (17) the projected financial information, anticipated grow th rate, and market opportunity of the Company; (18) the Company’s success in retaining or recruiting, or changes required in, i ts officers, key employees or directors following the completion of the Business Combination; (19) PTAC’s officers and directors allocating their time to other busin ess es and potentially having conflicts of interest with the Company’s business or in approving the Business Combination; (20) th e C ompany’s ability to achieve or maintain profitability; (21) the Company’s ability to effectively sell and market its products; (22) the Company’s ability to de velop, test and validate its technology; (23) any delay in the Company’s growth plan or development of its satellite systems; (2 4) the safety of the Company’s space infrastructure; (25) level of product service or product failure that could lead customers to use competitors’ services; and (26 ) risks associated with international expansion; and other risks and uncertainties set forth in the section entitled “Risk Fa cto rs” and “Cautionary Note Regarding Forward - Looking Statements” in the PTAC Final Prospectus and other risks and uncertainties indicated from the time to time in th e Company’s quarterly reports on Form 10 - Q and the Proxy Statement/Prospectus (when available), including those set forth under “Risk Factors” therein, or as otherwise indicated from time to time in other documents filed or to be filed with the SEC by PTAC. Disclaimer

Proprietary and Confidential 3 Disclaimer Continued Financial Data and Use of Projections The financial information and operating metrics contained in this Presentation are unaudited and do 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 s tat ement to be filed by PTAC relating to the Business Combination, the proxy statement or prospectus contained therein, or any other proxy statement, regi str ation statement or prospectus to be filed by the Company with the SEC. This Presentation contains projected financial information for the Company with respect to certain financial results for the Com pany. Neither PTAC’s nor the Company’s independent auditors have audited, studied, reviewed, compiled or performed any proced ure s with respect to the projections for the purpose of their inclusion in this Presentation, and accordingly, they did not express an opinion or prov ide any other form of assurance with respect thereto for the purpose of this Presentation. These projections are forward - looking st atements for illustrative purposes only and should not be relied upon as being necessarily indicative of future results or as historical results. The assumption s a nd estimates underlying such projections are inherently uncertain and subject to a wide variety of significant business, econ omi c, competitive and other risks and uncertainties. Such projections are based on assumptions, estimates and judgements that have been made with currently availab le information. See “Forward - Looking Statements” above and “Risk Factors” below. Actual results may differ materially from the re sults contemplated by the projections contained in this Presentation, and the inclusion of such information in this Presentation, should not be reg ard ed as a representation by any person that the results reflected in such projections will be achieved. Since the financial pro jec tions cover multiple years, such projections by their nature become less reliable with each successive year. Industry and Market Data Unless otherwise indicated, information contained in this Presentation concerning the Company's industry, competitive positio n a nd the markets in which it operates is based on information from independent industry and research organizations, other third - pa rty sources and management estimates. Management estimates are derived from publicly available information released by independent industry a nal ysts and other third-party sources, as well as data from the Company's internal research, and are based on assumptions made b y t he Company upon reviewing such data, and the Company's experience in, and knowledge of, such industry and markets, which the Company believes to be reasonable. While the Company believes that such third party information is reliable, the Company has not independently ve ri fied, and makes no representation as to the accuracy or completeness of, such third party information, and the Company has not ascertained the u nde rlying economic assumptions relied upon therein. In addition, projections, assumptions and estimates of the future performanc e o f the industry in which the Company operates and the Company's future performance are necessarily subject to uncertainty and risk due to a variety of fac tor s, including those described above. These and other factors could cause results to differ materially from those expressed in the estimates made by independent parties and by the Company. The Company does not guarantee the accuracy or completeness of such information conta ine d in the Presentation. Non - GAAP Financial Measures This Presentation contains certain measures not recognized by U.S. GAAP to evaluate the performance of the Company. These ter ms do not have any standardized meaning prescribed within U.S. GAAP and therefore may not be comparable to similar measures pres ent ed by other companies. Terms such as “EBITDA”, “Free Cash Flow” and others are financial measures utilized by the Company that are not de fin ed by U.S. GAAP. As there is no generally accepted method of calculating these financial measures, they may not be comparable to similar measures reported by other companies. Readers are encouraged to consider these financial measures in the context of the Company’s resu lts under U.S. GAAP, as provided in the Company’s financial statements. The principal limitation of these Non - GAAP financial measur es is that they exclude significant expenses and revenue that are required by U.S. GAAP to be recorded in the Company’s financial statements. Cautionary Note Regarding Preliminary Estimated Data This Presentation contains preliminary estimated financial data for the Company’s third quarter ended September 30, 2021 (the “P reliminary Estimates”). The Preliminary Estimates are subject to change and are not necessarily indicative of the Company’s a ctu al financial performance for such period. Readers are cautioned that actual results may differ materially from the Preliminary Estimates and, accordingly, sh ould not place undue reliance on the Preliminary Estimates. The Preliminary Estimates are based on assumptions, estimates and ju dgments that have been made with currently available information. Such assumptions, estimates and judgments are inherently uncertain and are subject to a wide variety of risks and uncertainties that could cause actual results to differ materially from the Preliminary Estimates . The inclusion of the Preliminary Estimates is not and should not be regarded as a representation by any person that the Preliminary Estimates will be achieved . T he Preliminary Estimates are subject to the closing of the quarter and finalization of accounting procedures, and should not be viewed as a substitute for full quarterly financial statements prepared in accordance with U.S. GAAP. Neither the Company’s independent auditors nor any othe r p erson has compiled, examined or performed any procedures with respect to the Preliminary Estimates and no such person has exp res sed any opinion or other form of assurance on the Preliminary Estimates or their achievability, or assumes any responsibility for the Preliminar y E stimates. Trademarks The trademarks, service marks, trade names and copyrights included herein are the property of the owners thereof and are used fo r reference purposes only. Such use should not be construed as an endorsement of the products or services of the Company. Conflict Disclosure PJT Partners LP (“PJT”) is acting as exclusive financial advisor to the Company in connection with the business combination a nd will receive compensation in connection therewith. PTAC has also engaged PJT to act as co - placement agent for which PJT will rec eive fees and expense reimbursements in connection therewith. The Company and PTAC have each signed agreements with PJT acknowledging PJT’s roles a s b oth financial advisor to the Company in connection with the Business Combination and as co - placement agent to PTAC in connection with the PIPE and waiving any potential conflicts in connection with such dual roles.

Proprietary and Confidential 4 Risk Factors The below list of risk factors related to the ongoing business of Tomorrow.io has been prepared solely in connection with the pr ivate placement transaction and potential investors therein. It is not exhaustive. You should carefully consider these uncert ain ties together with the disclosures contained in future documents filed or furnished by the SPAC with the SEC, together with the information in the SPAC and Tomo rro w.io ’ s Ɇ financial statements and related notes. You should perform your own due diligence and consult your own financial and legal ad vis ors prior to making an investment in the SPAC. Additional risks will be included in documents filed with the SEC with respect to the business and se curities of the parties to the business combination and may differ significantly from, and be more extensive than, those pres ent ed below. The following risks, risks not currently known or believed to be material, or other difficulties arising in the future, could ad versely affect Tomorrow.io ’ s and the combined company ’ s business, financial condition, and results of operations; make it more difficult to evaluate our prospects or predict future results; harm our reputation or customer confidence; slow or stop our growth; cause us to lose existing custom ers or fail to attract new customers or expand into new markets; eliminate product development or other operations; prevent us fr om achieving market acceptance; expose us to claims and associated liabilities; or affect the trading price of the combined company ’ s securities: ● We have a history of losses, expect to incur losses in the future, and may never achieve or maintain profitability. ● We may not continue to grow at or near our historical rates and may fail to manage any growth or scale effectively in any giv en industry vertical or generally. ● The market for weather intelligence, space - generated data, and technology spending generally may not develop further, develop mo re slowly, or develop in a way that we do not expect. ● The space market is saturated. Launch capacity is limited and regulatory and licensing requirements are extensive. We have no t y et launched satellites and may experience significant setbacks preparing for or during our planned missions. ● We do not have experience executing space missions. Our radar, antenna, and other space technology, along with planned orbits , d ata transmission and analysis, and other operations, are in development stages and are untested. We have experienced and may con tinue to experience delays, and our technology may not be operational. ● We may be unable to satisfactorily procure, develop, integrate or deploy new solutions or enhancements to our existing techno log y. The requirements for R&D, third - party inputs, facilities, capital improvements, or other costs may increase sharply. We have changed course in the past and may continue to encounter unexpected obstacles. We do not yet have vendors for certain portions of our radar, an tenna and other space infrastructure, and may not be able to obtain supply on a timely manner to meet our desired launch time lin e or at all. For certain equipment, we may need to rely on single sources of supply, which adds additional risk. ● Even if we are able to launch a satellite, we will be subject to the risk that the satellite will fail, its performance will deg rade or the satellite will experience an anomaly, or that it will malfunction or have a useful life that is shorter than anti cip ated, among other risks. ● We will be subject to significant regulation associated with our maintenance of a satellite including approvals, licenses, no tif ications or other compliance measures from such entities as the Federal Communications Commission, the International Telecomm uni cations Union, the Department of Defense, the National Oceanic and Atmospheric Administration, and/or the National Aeronautics and Sp ace Administration, and we may not be able to comply in a cost - efficient manner or at all. ● Real or perceived shortcomings or errors in our platform, customer support services, product roadmap or standard contract ter ms may make us unable to attract, adapt to or satisfy demands of customers in a manner that is timely and cost - effective. ● We rely upon third - party providers of cloud infrastructure which could malfunction, experience limitations on capacity or other interference, or be subject to price increases which adversely impact the profitability of our services. ● Our commercial contracts may in some cases be terminated at any time for convenience, require indemnification of the counterp art y, subject us to uncapped liability, include exclusivity arrangements, require audits of our financial and compliance records , o r contain other unique, cumbersome or unfavorable provisions. ● We sell to individual consumers, small businesses, large enterprises, government, and international customers. Varying compli anc e undertakings, skills, and associated resources are required. Sales and renewal cycles can be long, expensive and unpredicta ble . ● We may become subject to legal proceedings in which adverse litigation judgments or settlements resulting from these proceedi ngs could distract our management, expose us to monetary damages or limit our ability to operate our business. ● We may be unable to successfully and timely expand, deploy and motivate our marketing and sales organization. ● We rely on the performance of highly skilled personnel, including our management and other key employees, and a critical mass of existing employees.

Proprietary and Confidential 5 Risk Factors Continued ● If we cannot maintain our company culture as we grow, we could lose the innovation, teamwork, passion, and focus that we beli eve contribute to our success. ● Execution of the Business Combination or other acquisitions of companies or technologies, as well as integration of such acqu isi tions, could divert our management’s attention, result in additional dilution to our equity holders, otherwise negatively imp act our business and operations, and fail to deliver anticipated efficiencies. We recently completed the acquisition of Remote Sensing Solutions, In c. and may encounter difficulties in the integration and may not realize the benefits we expect from the acquisition. ● If we do not adequately protect our technology and data and protect and maintain our intellectual property rights therein and th ereto, including in government or other contracts, our business could be negatively impacted. There can be no assurance that we will be able to enforce any of our patents. We may also rely on third - party intellectual property which may become unavailable or not cost - effi cient. ● Our use of open source software could make us, among other things, vulnerable to the release of our proprietary source code o r c laims that we are violating the intellectual property rights of others. ● We may experience a security breach or unauthorized access to our systems, platforms, or data resulting in disruption, loss o r u nauthorized access to our platform, services, and data. In addition, our software could have or may become infected with und ete cted defects, errors or bugs that we fail to detect, which could damage our reputation with customers and harm our business. ● We collect, use, and process certain third - party data (including weather - related data provided by governments), employee data, a nd other proprietary or confidential data; if such data is corrupted, inaccurate, or no longer available to us for any reason , i ncluding due to U.S. national security, cyber crime, our inability to comply with related applicable law or use terms, or other reasons, our busin ess could be negatively impacted. ● We rely on certain vendors to provide us with data, infrastructure, software, development, and other products or services; a fai lure to maintain these contracts would adversely affect our business. ● Changes in laws or our failure to comply with any laws and regulations to which our business is subject (including the extens ive and evolving U.S. and international privacy and data protection laws) may adversely affect our business and results of operat io ns. ● Any reliance on U.S. government contracts exposes us to significant risks, and any significant deterioration in our relations hip with the U.S. government or failure to comply with those contracts would adversely affect our business. ● Our key business measures are likely to fluctuate quarterly, seasonally, and/or based on recognition of revenue over the life of a contract, making it difficult to project future results. ● The COVID - 19 pandemic and actions taken to mitigate the impact of the COVID - 19 pandemic could continue to negatively affect many aspects of our business, including our financial condition and results of operations. ● We expect to face intense competition from better capitalized competitors and may not be able to compete successfully with cu rre nt or future competitors. ● Our international operations and planned expansion create increased economic risks, the potential for adverse sales, value - added , or other tax consequences, risks related to fluctuations in currency exchange rates, risks related to corrupt practices and ex port control, and other legal compliance and business risks. ● There can be no assurance that the Business Combination will achieve our objectives of providing the company with sufficient cap ital. We may require substantial additional funding, and there can be no assurance that we will be able to obtain such funds on attractive terms or at all, and you may experience dilution as a result. ● We may be unprepared to be, and do not have a history as, a public company. We do not have a history of managing internal con tro ls or stock exchange listing requirements. The obligations associated with being a public company will involve significant e xpe nses and will require significant resources and management attention, which may divert from our business operations. ● Our results of operations and financial condition could be negatively impacted by changes in accounting principles. ● We may be exposed to unknown or contingent liabilities and may be required to take write - downs or write - offs, restructuring and impairment or other charges. ● Our ability to use our net operating loss carryforwards and certain other tax attributes may be limited, including in connect ion with a change in ownership. ● We depend on third parties to launch payloads into space and any delay could have a material adverse impact on our financial con dition and results of operations. ● We may rely on a limited number of suppliers for certain raw materials and supplied components. ● The success of our business and growth plan depends on our ability to effectively launch satellites into space, which is subj ect to many uncertainties, some of which are out beyond our control. ● Failures in our technology infrastructure could damage our business, reputation and brand and substantially harm our business an d results of operations. ● We have government customers, which subjects us to risks including early termination, audits, investigations, sanctions and p ena lties. ● Any acquisitions, partnerships or joint ventures that we enter into could disrupt our operations. ● Our operating results may fluctuate significantly, which makes our future operating results difficult to predict and could ca use our operating results to fall below expectations or any guidance we may provide. ● We may be subject to environmental regulation and may incur substantial costs. ● Changes in tax laws or regulations may increase tax uncertainty and adversely affect results of our operations and our effect ive tax rate.

Proprietary and Confidential 6 Opportunity to Own a Category - Defining Company with a Deep Competitive Moat High Growth SaaS Business Disrupting the Massive Weather Intelligence Market Leading Mission - Critical Solution for Managing Weather - Related Risk and Climate Security ESG Impact Through Democratizing Access to Weather Data and Protecting Global Communities Diversified, Blue - Chip Customer Base with Numerous Potential Use Cases and Leading Retention Overview ● Targeting innovating, digitally - focused services companies with an enterprise value ~ $750 million without excessive leverage ● Management team and Sponsorship with deep operational, M&A and public market expertise ● Proven track record of successfully identifying companies poised for rapid growth, particularly in the InsurTech space ● Combined decades of experience leading billions of dollars of successful investments and M&A transactions Pine’s Investment Thesis for Tomorrow.io Transaction to Increase Access to A Broad Strategic Network and Diversify Customer Base in the Insurance End Market Pine Merger to Accelerate Product Enhancements and Development for Insurance Uses Cases Pine Technology: Differentiated, Operator - led SPAC Partner with Significant Expertise

Proprietary and Confidential 7 Presenters Shimon Elkabetz Chief Executive Officer, Co Founder Pine Technology Acquisition Corp. Valuation Capital Structure Ownership ● Pine Technology Acquisition Corp. (NASDAQ: PTOC) is a publicly listed SPAC with $ 345 million cash in trust ● Pine will combine with Tomorrow.io, forming a well - capitalized weather intelligence SaaS platform ● Transaction implies a Pro Forma Enterprise Value of $729mm and Pro Forma Cash Balance of $477mm ● Valuation at pricing represents an attractive entry point for investors, relative to growth and comparable companies ● Transaction will be funded by a combination of $345 million of Cash in Trust by Pine and $75 million PIPE ● 58% existing shareholders; 29% SPAC shareholders; 6% PIPE investors and 7% SPAC Sponsors (1) Transaction Highlights Stephen Gregorio Chief Financial Officer Adam Karkowsky Chairman of Pine Technology, President of AmTrust Financial Services Note: Assumes no redemptions from SPAC public holders and no secondary proceeds to existing shareholders. (1) Pro forma share count includes the existing 34.5mm Pine public common shares and 8.6mm Founder Shares, 7.5mm shares from PIPE issuance, and 70.0mm shares to be issued to existing Tomorrow shareholders.

Proprietary and Confidential 8 Tomorrow.io is a high - growth SaaS company with a vertically integrated business model, tackling one of the most important challenges for humanity ● Started operations in 2016 in Boston ● 1st Enterprise Customer in 2018 ● ~120 Enterprise Customers today ● Strategic investors: ● Approximately 175 employees ( 90 in R&D) ● 19X ACV Bookings Growth over last 3 years ● 144% Average Net Dollar Retention (2) ● 28K Developers on the platform (3) ● >2.7M downloads of the app (4) ● Terabytes of data generated every day ● $38.9B and growing TAM With an ESG mission A high growth SaaS company (1) Environmental Significantly improves Climate Science and Weather Forecasting Social Protects communities and saves lives globally Governance Shields Countries, Businesses and Individuals from the impact of Climate Change Tomorrow.io at a Glance Backed by Deep Tech Proprietary Global Weather Data Weather Intelligence SaaS In - House High Resolution Forecasting Models (1) As of November 18, 2021, unless otherwise indicated (2) Based on Enterprise customer ARR. Reflects a 3 - year average from 2018 - 2020 (3) As of November 24, 2021 (4) As of November 21, 2021

Proprietary and Confidential 9 Take Control of Tomorrow, Today Examples of Real Customer Case Studies: “ With Tomorrow.io, we’re providing even more accurate ETAs based on insights from their on - demand forecasts. ” “ This tool was designed with an understanding of the decision - making pressure airport leaders face every day. ” “ Tomorrow.io’s tools tell us exactly when to expect a weather event and when it will pass us. ” “ High - definition, microweather information supports multiple mobility and AV initiatives we can offer via FordPass. ” Aviation: Saving Airline $2M During Single Event Utilities: Energy Conglomerate Avoids Outage During Cyclone Insurance: Helping Prominent Provider Minimize Payouts Sports: Updating Operations Amidst 538% Increase in Weather Events (1) On - Demand: Driving Growth at Largest On - Demand Company Federal: Improving Decision Making for the USAF (1) Boston - area high wind events, from 2017 to 2021

Proprietary and Confidential 10 Recognition Growing Climate change is “ the single biggest risk that exists to the economy today .” Former US Treasury Secretary Henry Paulson President of the United States Joe Biden “ Climate change is the existential threat to humanity...Unchecked, it is going to actually bake this planet. This is not hyperbole. It’s real. And we have a moral obligation. ” U.S. Special Presidential Envoy for climate John Kerry “ We spent around $100bn recovering from natural disasters just in 2020. ” Climate Security - The Next Economic Frontier 2020 brought... ● $ 210 B in weather disaster losses worldwide ● Record year for hurricanes ● Strongest tropical cyclone to ever hit landfall in world recorded history ● Record wildfire seasons in U.S. and Australia Number of disasters Year Hydrometeorological Total Geophysical Total Number of reported disasters by disaster type CEO of BlackRock Larry Fink “ Climate change is almost invariably the top issue that clients around the world raise with BlackRock. The evidence on climate risk is compelling investors to reassess core assumptions about modern finance. ” Sources: Forbes , Blackrock , CNBC , Economist , Munichre , NCEI , Yale Climate Connections , Fire.ca.gov , Our World in Data,

Proprietary and Confidential 11 “We...are entering a period of consequences.” - Al Gore To enable proactive response in a changing climate, predicting the weather and using Weather Intelligence are becoming more critical than ever before. Managing our Global Climate Security with Weather Intelligence $4tn worth of assets at risk of climate change by 2030 Countries, businesses, and individuals must have systems in place. 215 of world ’ s largest public companies identified $ 970 bn in potential losses with over half expected to materialize over the next 5 years Sources: New York Times , WEF , CDP , cdp.net , Whitehouse.gov President Biden Directs Agencies to Analyze and Mitigate the Risk Climate Change Poses Top Global Risks by Perceived Likelihood 2021

Proprietary and Confidential 12 We believe Climate Security is the new Cyber Security. Weather Intelligence is the key.

Proprietary and Confidential 13 The Problem Existing Providers Technology led by governmental agencies Most countries blind to weather data Businesses reactive, cannot link weather to expected impact and miss reliable data Repackage governmental forecasts - lack of accuracy, resolution, and limited coverage Challenged to overcome multi - vertical weather complexity Services (not scalable software) Raw weather data vs. actionable business insights Sources: Weather.gov, WRD , Business Insider , HBR , WMO 70% of businesses worldwide are adversely affected by abnormal weather 70 % 60% of the globe doesn’t have a single weather radar 60 %

Proprietary and Confidential 14 Proprietary Global Weather Data Weather Intelligence SaaS In - House High Resolution Forecasting Models Tomorrow.io : a vertically integrated Business Intelligence Platform SaaS Company Powered by Proprietary Data and Algorithms Weather of Things

Proprietary and Confidential 15 The Brands People Rely on Most, Rely on Tomorrow.io Sources: Aviation Benefits , Research and Markets ( 1 ) ( 2 ) ( 3 ) ( 4 ) , IMarc Group , Insurance Global Market Report , Valuates Reports , Allied Market Research , Grandview Research , IDC , FAA , Science Direct , Transportation.gov , World Bank ( 1 ) Figure includes indoor events, ( 2 ) Reflects information technology market size Transportation ~$6.4T ● Aviation ● Railways ● Shipping ● Utilities ● Power & Renewables ● Oil & Gas, Mining ● Insurance ● Trading ● Sports ● Events ● Broadcasters ● On - Demand ● Drones ● Software Platforms ● Defense ● Met Agencies ● Countries Energy Finance Sport & Venues Technology Federal ~$10.5T ~$4.7T ~$ 1.4 T ( 1 ) ~$5.2T (2) ~$14.5T Market Size by Industry

Proprietary and Confidential 16 Tomorrow.io’s mission is to equip humanity with the weather intelligence needed to adapt and thrive in an era of climate crisis.

Proprietary and Confidential 17 Global distribution of terrestrial radars Lack of Weather Access and Accuracy ● 5 billion live outside radar coverage (1) ● 1 current satellite with precipitation radar exists, lacks data quality ● Government agencies building low - resolution models ● Industry repackages same data - limited government forecasts Source: WMO Today’s forecasts are not optimized to help people, governments, or businesses make operational decisions Sources: (1) WRD and calculation, UN , WMO , MAP: Dot depiction for illustrative purposes only

Proprietary and Confidential 18 Our Goal: World ’ s First Comprehensive Global Weather Data Set Massive improvement in hurricane forecasting, flood alerts, and natural disaster management The Goal of Tomorrow.io’s Satellite Constellation is to Democratize Access to Weather Forecasting High Data Quality 1 Hour Refresh Rates Creating Satellites 330x Less Expensive than NASA’s GPM Deploying Active Radars to Space Collecting Multiple Direct Measurements Sources: WMO , NASA , Washington Post

Proprietary and Confidential 19 Product & Customer Stories

Proprietary and Confidential 20 Differentiated Value for Customers on 3 Different Levels Proprietary Data and Models Business Insights Technology Solutions VS VS Existing Weather Providers: Repackaged governmental data and forecasts lack accuracy and coverage Existing Weather Providers: Non - actionable weather and environmental raw data Configurable SaaS Platform VS Existing Weather Providers: Service companies provide non - scalable consulting services, not software 10x

Proprietary and Confidential 21 Runway A Runway B De - ice with minimal dilution 40% Level 4: High winds activity matrix Snowfall rate 1” - 1.5” per hour Airline Manages Airport and Crew Operations with Tomorrow.io De - ice planes between 10 AM - 11 AM Weather Alert Precipitation 1.5 in/hr Temperature 26 ° F Wind Speed 55 mph April 2019: Storm brings 9.8” of snow, lightning, and 50 MPH winds Airline using Tomorrow.io avoided delays, and saved $2M from this single event All Airlines needed to de - ice but could not, as winds were > 40 MPH Tomorrow.io found pocket of time with < 40 MPH winds Tomorrow.io Customer Case Study

Proprietary and Confidential 22 Utility Company Prevents Power Outages with Tomorrow.io Pre - position maintenance crews at towers A, B, and C at 4 PM Weather Alert May 2020: Largest cyclone ( Amphan ) in 20 years hits India amidst COVID - 19 Tens of millions of people saved from power outages and millions in cost savings Tomorrow.io predicted 3 towers out of 300 at risk of power line damage A utility company pre - positioned maintenance crews at high risk towers Sources: ClimaCon 2021

Proprietary and Confidential 23 Insurance Provider Reduces Claims and Asset Risk with Tomorrow.io Hail will start in 60 minutes. Move car to covered area and check road conditions Weather Intelligence Alert Insurance company receiving hail claims for auto damage ~89% Net Promoter Score1 among customers for provider’s use of platform alerts Started alerting customers before hail to put cars under cover and check road conditions Significant annual cost savings from claim payout reduction and validation alone Sources: ValuePenguin

Proprietary and Confidential 24 Vertically Integrated Architecture CBAM Real - Time Data Layers One Forecast Precip Air Quality Hydrology Weather Models Just - in - time Weather Applications Weather Engine Just - in - time insights User alerts API & User Services Raw weather data Business insights External Data Weather Stations Observations 3rd - party weather models 3rd - party satellite data 3rd - party radars WoT (Weather of Things) Inputs Non - Weather data sources Tomorrow.Space Active Radars Long - term archival object storage Standard object storage Geospatial layers database Data Cache Data Storage and computing Image storage HPC architecture Proprietary for Tomorrow.io Tomorrow.io User Applications Weather Intelligence Platform API Weather by Tomorrow Expected starting October 2022

Proprietary and Confidential 25 Tomorrow.io GTM

Proprietary and Confidential 26 Tomorrow.io Assistant Your personal weather planner and life companion Tomorrow.io API Tomorrow.io Platform Data and insight integrated into the customer’s software Customizable for every use case and business model SaaS: How We Go - to - Market as a Company > 2.7 M Downloads to date ( 1 ) 28K Developers (2) ~120 Enterprise Customers (1) FOR CONSUMERS FOR DEVELOPERS FOR OPERATIONS & ANALYTICS 27K Ratings ( 1 ) As of November 21 , 2021 ɆɆ ( 2 ) As of November 23 , 2021

Proprietary and Confidential 27 $13.6M ARR at end of Q3 2021 $5.7M ARR at the end of 2020 144% Average Net Dollar Retention (Enterprise) ( 2 ) (1) YTD through November 18, 2021 (2) Based on Enterprise ARR. Reflects a 3 - year average from 2018 - 2020 (1) 2017 - 2021 ACV Growth 2020 - 2021 ARR

Proprietary and Confidential 28 Countries 2 to 71 Enterprise Strategy to Land and Expand 850% ACV Growth in last 3 years Airports 1 to 103 Countries 1 to 28 215% ACV Growth in last 2 years Markets 263 to 10,000 ACV Growth Overtime Geographical Expansion [#Airports] ACV Growth Overtime Geographical Expansion [#Countries] Airline On - Demand Sources: Management

Proprietary and Confidential 29 Revenue Expansion Across Potential Customers Proprietary Radar Data Accelerates Expansion and Upsell Opportunity: Tomorrow.io enterprise customer engagement evolution New Use Cases Expand Locations Stake in Ground Proof of Concept $MM’s per customer $100’s k per customer Demonstrate ROI Embed into Workflows Expand within Organization ● Accuracy ● Frequency ● Oceans and remote locations ● Additional use cases Current Use Cases Future Use Cases • Fleet management and dispatching • Minimize departure delays • Reduce taxi deicing times, fuel burn, crew burn, and timeouts • Improve staff scheduling efficiency and worker safety • Flight planning and optimization • Real time routing over oceans • End - to - end operations • Optimize end - to - end customer experience Sources: Management

Proprietary and Confidential 30 Radar Technology

Proprietary and Confidential 31 Direct precipitation measurements Single most important input in storm forecasting Multiple direct data measurements More weather data parameters 5km pixel resolution High data quality Space - based Global coverage Constellation High data refresh Tomorrow.io’s Active Radar Data NASA GPM GPS - RO Passive MW VS Single research satellite, no replacement planned Highly Differential Data Set With Satellite Constellation Sources: NASA GPM , Spire , GeoOptics , PlanetiQ , Orbital Micro Systems

Proprietary and Confidential 32 Huge Barriers to Replicate Tomorrow.io’s Radar Data Post - Satellite Launch Own Sensor IP ● Acquisition of strategic radar company for team and tech ● Already funded significant development 01 Long Development Time ● 4+ years from concept to launch ● Extensive trade studies and development cycles 02 Expert Data Knowledge ● Hired world’s experts in weather data assimilation ● Former Leaders from Rocket Lab, BlackSky, SRI, NASA JPL 03 Clean Sheet Approach ● Others burdened by significant capital investments in deploying passive sensors with limited value (Spire, GeoOptics, PlanetIQ) 04 Sources: Management

Proprietary and Confidential 33 ESG Impact

Proprietary and Confidential 34 Tomorrow.io investors seek long - term social & environmental impact on a global scale Tomorrow.io is an ESG Investment ● Mitigating consequences of climate change ● Deep technology ● Significant improvements ○ Climate science ○ Weather forecasting ● Protecting global communities ● Saving lives with technology ● Improving food security ● Bridging inequality gap ○ Weather data ○ Weather forecasts ● Innovative product ● Implement scalable systems ● Shield from climate change impact ○ Countries ○ Businesses ○ Individuals Environmental Social Governance

Proprietary and Confidential 35 Revolutionizing climate science with a global radar system Reducing carbon fuel consumption with routing efficiency Monitoring sea level rise Accurate precipitation monitoring on a global scale revolutionizing climate science and weather forecasting Preventing power outages Our Environmental Goals

Proprietary and Confidential 36 Our Social Goals Enabling reliable flood alerts on a global basis Improving supply chain safety on land and sea, in both the developed and the developing world Saving lives by improving hurricane forecasting Managing locust crisis Improving food security in developing countries Improving crop output with reliable weather forecasting

Proprietary and Confidential 37 Our Governance Goals Put systems in place to manage risk with Tomorrow.io’s Weather Intelligence Platform ʆ Analyze the connection between weather, climate risk and business outcomes using AI Better understand tomorrow’s challenges with accurate historical data

Proprietary and Confidential 38 Targeting Use of Proceeds $ 420 m Total Proceeds 3 Primary Areas of Investment Investment in the SaaS platform (R&D, data science, sales and marketing) Deployment of global constellation of active radar Investment Highlights: Path to Accelerate Growth and Rapidly Create a Strong Competitive Moat Potential bolt - on strategic acquisitions

Proprietary and Confidential 39 Proprietary Weather Intelligence Platform ʆ for Climate Security Proven Leadership Team with World - Class Investors Investment Highlights: Tomorrow.io Weather Intelligence for Global Climate Security Unmatched Response To Growing Climate Risk Globally Category Killer with Vertically Integrated Radar Data Established and High - Growth SaaS Business

Proprietary and Confidential 40 The Tomorrow Companies, Inc. Financials

Proprietary and Confidential 41 Strong Unit Economics, for Every $1 Spent in 2020 on S&M, $1 of New ACV was Acquired Established Subscription Software Model with ~100% ARR Projected Growth Over the Next Five Years Exceptional ~19x ACV Bookings Growth since 2018 Pine Merger Expected to Fully Fund Growth Plan and Path to Profitability Pipeline and Existing Book of Business Provides Strong Visibility into 2022+ Forecast Successful Execution of Land and Expand Model, Including 144 % Net Dollar Retention ( 1 ) Robust Gross Margin Projected to Approach 87% in Five Years Tomorrow.io Financial Highlights (1) Based on Enterprise ARR. Reflects a 3 year average from 2018 - 2020.

Proprietary and Confidential 42 ARR Revenue Composition Enterprise CAC / New Bookings Per Customer Enterprise LTV / CAC Payback Period Key KPI Projections $13 $33 $91 $242 $523 $ 944 0.3x 2.0 x 3.3x 4.8x 5.0x 4.5x 2021E 2022 E 2023E 2024 E 2025E 2026E 2021E 2022E 2023E 2024 E 2025E 2026 E 111% 107% 111% 117% 118% 104 % 85% 86 % 85% 85% 85% 85% Enterprise GRR % Enterprise NRR % Growth and New Revenue % Deferred, Renewal, and Contract Revenue % 24.1x 3.4 x 2.0x 1.4 x 1.3x 1.5x Sources: Management estimates 14.3x 2.8x 1.4 x 1.1x 1.3 x 1.0x 2021E 2022E 2023E 2024E 2025E 2026E 2021E 2022E 2023E 2024E 2025E 2026E 73 % 54% 51 % 53% 61% 68% 27% 46% 49 % 47% 39 % 32% 1.0x

Proprietary and Confidential 43 Projected Summary Income Statement CY 2021E 2022E 2023E 2024E 2025E 2026E ($ in millions) Enterprise $8 $13 $40 $116 $268 $472 Federal 1 9 16 41 96 230 Other 2 5 9 14 24 45 Revenue $11 $28 $65 $172 $389 $747 % Growth 165% 133% 162% 127% 92% Gross Profit $8 $23 $44 $128 $317 $649 % Margin 71% 83% 68% 75% 82% 87% Total Opex $63 $97 $137 $228 $339 $493 % Margin 595% 347% 210% 133% 87% 66% EBITDA ($54) ($69) ($79) ($70) $21 $209 % Margin NM NM NM NM 5% 28% Sources: Management estimates (1) EBITDA calculated as Gross profit – Opex + D&A. (1) ● Revenue growth driven by strength in the Enterprise and Federal segments ○ Increase in average contract value per customer ○ Increase in customer count as new use cases allow for new customer engagements and upselling of existing customers ● Gross Margins increase as economies of scale are achieved ○ Declining customer acquisition costs over time ● Operating Expense as a % of revenue decreases with scale ○ Benefits from operating leverage ○ Offset by increased but controlled marketing spend to drive growth

Proprietary and Confidential 44 Projected Cash Flow Summary Sources: Management estimates. (1) Includes current assets, current liabilities and deferred contract costs. ($17) $109 ($48) 2021E ($62) 2022E ($55) 2023E $ 282 2024E 2025E 2026E ($18) $108 ($49) 2021E ($63) 2022E ($ 56 ) 2023 E $280 2024E 2025E 2026E Free Cash Flow Ex. Satellite Capex Recurring Free Cash Flow Free Cash Flow Bridge CY 2021E 2022E 2023 E 2024E 2025E 2026E ($ in millions) EBITDA (54) (69) (79) (70) 21 209 ( - ) Taxes (0) (0) (0) (0) 0 (39) (+) SBC 3 8 13 23 35 51 (+) Change in NWC (1) 3 (1) 10 29 53 61 Operating Cash Flow (48) (62) (55) (17) 109 282 ( - ) Recurring Capex (0) (0) (1) (1) (1) (2) Free Cash Flow excl. Satellite Capex (49) (63) (56) (18) 108 280 ( - ) Satellite Capex (8) (24) (54) (28) (4) (5) Free Cash Flow (57) (87) (110) (46) 104 276

Proprietary and Confidential 45 Transaction Overview

Proprietary and Confidential 46 Transaction Overview Share Price $10.00 Pro forma shares outstanding ( 4 ) (mm) 120.6 Pro forma equity value ($mm) $1,206 Less: net cash ($mm) (477) Pro forma enterprise value ($mm) $729 $mm Existing Tomorrow Shareholders $700 Existing Cash on Balance Sheet (1) 102 Pine Cash in Trust (2) 345 Additional PIPE Equity (3) 75 Total Sources $1,222 $mm Existing Tomorrow Shareholders $700 Cash to Balance Sheet 477 Illustrative Fees and Expenses 45 Total Uses $1,222 ● Pro forma enterprise value of $729mm, representing a 11.1x 2023E Revenue multiple based on 2023E Revenue of $65mm and a 4.3x 2024E Revenue multiple based on 2024E Revenue of $172mm ● Existing Tomorrow shareholders rolling 100% of their equity and will receive 58% of the pro forma equity Existing Holders SPAC Investors Pipe Investors SPAC Sponsors 63% 24% 7% 6% Valuation: ● Transaction expected to result in $420mm of transaction proceeds to fund growth ● Funded by a combination of $345mm cash in trust account and $75mm in PIPE proceeds Capital Structure: Sources: Uses: Pro Forma Valuation: Pro Forma Ownership: (1) $102mm of existing balance sheet cash as of 9/30/21. (2) Assumes no redemptions by Pine’s existing public shareholders. (3) Assumes 7.5mm shares are issued at $10.00 per share. Includes $27.5mm of commitments from affiliates of the Sponsor. (4) Pro forma share count includes the existing 34.5mm Pine public common shares and 8.6mm Founder Shares, 7.5mm shares from PIPE is suance, and 70.0mm shares to be issued to existing Tomorrow shareholders. 58% 29% 7% 6%

Proprietary and Confidential 47 High Growth SaaS Software High Growth Data & Analytics Peers Tomorrow.io : At the Intersection of High Growth SaaS Software and Enterprise Data Peers

Proprietary and Confidential 48 Peer Operational Benchmarks Note: Market data as of 11/18/21 Source: Capital IQ Tomorrow HIGH GROWTH SAAS SOFTWARE HIGH GROWTH DATA & ANALYTICS PEERS CY2021E - CY2023E Revenue CAGR Median: 31% Tomorrow HIGH GROWTH SAAS SOFTWARE HIGH GROWTH DATA & ANALYTICS PEERS CY2022E Gross Margin Median: 77% Median: 29% Median: 81% 148% 36% 35% 34% 33% 30% 29% 29% 27% 25% 25% 25% 24% 61% 48% 38% 33% 32% 31% 30% 30% 21% 18% 18% 83% 68% 75% 88% 86% 85% 82% 82% 81% 81% 80% 78% 78% 70% 53% 90% 83% 78% 77% 77% 76% 75% 72% 70% 54% 49%

Proprietary and Confidential 49 Peer Trading Benchmark 57x 39x 36x 31x 26x 15x 15x 10x 9x 46x 34x 29x 16x Note: Market data as of 11/18/2021. Source: Company filings, S&P Capital IQ (1) Calculated based on $729mm pro forma enterprise value. Tomorrow HIGH GROWTH SAAS SOFTWARE HIGH GROWTH DATA & ANALYTICS PEERS CY2023E Enterprise Value / Revenue Median: 10.6x 11x (1) Median: 17.9x 4x (1) 17x 14x 10x 8x 6x 6x 19x 11x 9x 4x

Proprietary and Confidential 50 Appendix

Proprietary and Confidential 51 Executive Team Scientific Leadership Luke Peffers , PhD Chief Weather Officer Alan Hawley CRO Osnat Barak Chief People Officer Dan Slagen CMO Shimon Elkabetz CEO, Co Founder Rei Goffer CSO, Co Founder Itai Zlotnik CCO, Co Founder Seasoned Leadership Team Founding Team Leigha Kemmett COO John Springmann , PhD Chief Space Engineer 90 out of 150 Employees in R&D Stanford, MIT, NASA JPL Alums Stephen Gregorio CFO World - Class Investors

Proprietary and Confidential 52 Total Addressable Market Global Spend on Weather and Climate Services estimated at $89B 1 in 2020, with 8% CAGR 2 By 2030, total spend expected to reach $190B (1) Based on actual data from 2010 through 2014, forecasted using the same CAGR through 2030. Data is from “ Global disparity in the supply of commercial weather and climate information services”, Science Advances (2) Actual CAGR from 2010 - 2014, see Science Advances article above, assumes CAGR stays the same (3) See Tomorrow.io TAM Model Total measured and projected global spend on weather and climate services ($BB) Tomorrow.io’s immediate addressable market (bottom up model) 3 : Enterprise $13.3B SMB $9.8B B2C $0.5B Space Data and Federal $15.3B Total $38.9B

Proprietary and Confidential 53 Projected Operating Expenses CY 2021E 2022E 2023E 2024E 2025E 2026E ($ in millions) S&M $21 $36 $61 $117 $187 $291 R&D 16 23 31 45 64 89 Space 14 22 24 37 45 51 G&A 12 16 21 29 43 62 Total OPEX $63 $97 $137 $228 $339 $493 % Growth -- 54% 41% 66% 48% 46% Memo: % of Total Revenue S&M 200% 129% 93% 68% 48% 39% R&D 152% 82% 47% 26% 16% 12% Space 134% 79% 37% 22% 12% 7% G&M 109% 57% 32% 17% 11% 8% Total OPEX 595% 347% 210% 133% 87% 66% Sources: Management estimates

Proprietary and Confidential 54 Instrument Type Mission & System eng. Payload Design Bus Launch Downlink Raw Data Weather & Climate Models Products for end - users Active Radar Do in - house Do in - house outsourced outsourced outsourced Ultra high value, not selling Highly capable Highly capable GNSS - RO Do in - house Do in - house Do in - house Do in - house Limited quality, sell to everyone Very limited No capabilities GNSS - RO Do in - house Do in - house outsourced outsourced outsourced Sell to everyone No capabilities No capabilities GNSS - RO Do in - house Do in - house outsourced outsourced outsourced Sell to everyone No capabilities No capabilities Passive MW Do in - house Do in - house outsourced outsourced outsourced Low quality, Sell to everyone No capabilities No capabilities This part is NOT our business. Very high setup costs and commoditized with many vendors to choose from Some Value More Value Most Value “Sensor first” companies SaaS Company Data From Space - A New Business Model We are going to space to solve the hardest gap in global weather observations - we focus our energy on the most critical, and most valuable parts of the value chain. From Washington Post: “This aim [using the space data in our own products] contrasts with the business of most, if not all, space companies today that are pursuing weather applications. These firms, such as GeoOptics and Spire , have business models that are based on selling the data for others to use in forecasting the weather, with customers that include federal agencies. However, Tomorrow.io would use its own technology, which already includes proprietary weather modeling, to take advantage of the data it gathers from space.

Proprietary and Confidential 55 ● All commercial constellations use passive instruments only, offering limited value to downstream models, and not breaking into new frontiers ● Majority of them focus on the same type of instrument - GNSS - RO, making this data a commodity ● Tomorrow.io is not settling on “easy” sensors that are already commoditized. We are opening a new frontier of active sensing from small satellites, the golden grail of meteorology tomorrow.space Active Radar GNSS - RO (passive radio) Passive MW Availability today None with high revisit, 2 - 3 missions for science research Commodity (multiple constellations / missions) Commodity (multiple constellations / missions) Difficulty of developing a small - satellite instrument Very hard (we are the first to succeed) Solved problem, many instruments in use Solved problem, many instruments in use Usefulleness A wide variety of meteorological applications - real - time, nowcast, global and regional scale NWP models, climate Almost exclusively for global scale NWPs Almost exclusively for global scale NWPs See Precipitation? Directly, with high sensitivity No Indirectly, limited sensitivity Pixel Resolution 5km NA 10 - arc50km Active Sensors - Much Harder, Much More Powerful We didn’t just settle for an off - the - shelf sensor. We took on the biggest challenge in remote sensing from space

Proprietary and Confidential 56 2020 2019 2021 2022 2023 2024 2025 Phase 0 Concept, Initial Design Phase 1 R&D, Airborne Demo Phase 2 Space Demonstrations Phase 3 Scale Phase 4 Steady State / Generation 2 Concept Design Prototype Dev Space unit Dev/integration PDR Air test campaign First launches Scale launches 2X 8X 22X Development and Demos Monetization ● Constellation fully operational during 2023, and is expected to keep growing until 2025 ● Steady - state constellation size is planned for 32 satellites ● Work on “Generation 2” will begin in parallel to scale launches Projected Development and Launch Timeline

Proprietary and Confidential 57 Creating a Strong Competitive Moat and Unlocking Growth Pathfinders unlock massive growth potential in anchor customer base 2021 2022 2023 2024 2025 Today’s Weather Forecasting Limited Radar Data ⇨ Most of the World is Blind 3X the number of precipitation satellites on Orbit ⇩ Step Change in Weather Forecasting Skill Complete Satellite Constellation 32X the number of precipitation satellites on orbit, 1 hour average revisit globall y ⇩ Real - Time Weather Awareness Space - borne Weather Radar Coverage Launch 2 Tomorrow Pathfinders Sources: Management

Proprietary and Confidential 58 Baseline Use Cases Specialized Use Cases • Policyholder weather alerts • Hurricane prediction • Infrastructure monitoring and risk prediction • Policy updates based on weather impact • Restrict products days before storms • Programmatic historical archive • Long - term lightning flash rate forecast • Crop yield volatility index • Wildfire smoke models • Asset risk scoring • Real - time claim validation • Reduced need for site - visits • Fluvial and pluvial flood index model Climate Security for Insurance Weather Intelligence Unlocks Climate Adaptive Products $4T in Assets at Risk by 2030: ● $210B in weather disaster losses worldwide ● Assets at risk as % of GDP to double by 2050, from 2% to 4% Claim Management and Risk Mitigation: ● Historical archive and real - time insights for claim validation ● High - resolution post - event 3D reanalyses ● Notify customers before weather to reduce damages/claims Parametric Insurance With High Resolution: ● Enabling parametric insurance in LATAM, Africa, India and more ● Policy recommendations for specific locations ● Indices with high resolution models ● Business models with inputs matching product granularity ● Minimize risk and provide insurance with more certainty ● Avoid location - based product offerings before/during weather events • New products in data scarce regions Sources: New York Times , WEF , CDP , KPMG , Economist , Swiss Re

Proprietary and Confidential 59 Focused on Mitigating the Risk of Climate Change